Intoxication and
Incapacitation
• Eve Fichtner, Partner
VanDermyden Maddux Law Corporation, Sacramento;
• Keith Rohman, President
Public Interest Investigations, Inc., Los Angeles.
Introduction
• Focus on alcohol
– “Most widely used and abused drug on earth.”
• Highlight key issues
• Interview questions and concepts
• Red flag inherent difficulties
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If recreational drugs were tools,
alcohol would be a sledgehammer.
Few cognitive functions or behaviors
escape the impact of alcohol.”
- Aaron M. White, Ph.D.
Effects of Alcohol
• Impairs cognition and psychomotor skills
AND
• Affects parts of brain responsible for:
– Judgment
– Inhibition
– Personality
– Intellect
– Emotional states
Effects of Alcohol
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Basic Biology
• Ethyl alcohol is a small, water-soluble molecule
• Readily absorbed and distributed by the blood to
the water-containing components of the body.
• Eliminated by metabolism, excretion and
evaporation
Basic Biology
• Metabolism
– Chemical process which converts food and
liquids into nutrients
– Alcohol metabolism begins at nearly the same
time the alcohol is absorbed.
• About 20 percent is rapidly absorbed into the
bloodstream
Basic Biology
• Alcohol absorption
– Primarily absorbed from small intestine into veins
• The veins carry it to the liver
• Liver processes what you eat
or drink, and “either
repackages it for your body
to use, or eliminates it.”
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Pace and Volume Matter
• Whatever the liver can’t metabolize is
carried by blood stream and…
– On to the brain!
• Which gets the party started.
Basic Biology
• Un-metabolized alcohol goes to:
– Urine
– Breath
Basic Biology
• Food in stomach is the key factor affecting
rate of absorption
– Food requires digestion;
it slows alcohol absorption.
– Peak BACs generally within 30 – 60 minutes
of the cessation of drinking.
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Women vs. Men
• Women get drunk quicker than men
– Women have less body water which results in
higher BACs
– Women have less of a stomach enzyme
which can metabolize alcohol
– Alcohol and hormone levels
– Size matters
College Age Drinking
• “Two of five American
college students were
heavy drinkers,
having had five or
more drinks in a row
in the past 2 weeks.”
• Survey of 772
undergraduates
showed that “40
percent reported
experiencing a
blackout in the year
before the survey.”
Signs of Intoxication
• Heavily studied area in sciences
– Non-medical determinations
• Police officers
• Bar owners and alcohol servers
• Social party hosts
• Lots of lists
– DSM-5
– Alcohol Beverage Control regulators
– Scientists
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Signs of Intoxication
• Decreased inhibitions
• Psychomotor impairment
• Cognitive impairment
Signs of Intoxication
Decreased inhibitions
• Doing or saying things not normally done when sober
• Boisterousness or bravado
• Argumentative or confrontational
• Obnoxious
• Hanging on to people or intruding on their personal
space
• Animated or exaggerated actions
• Rapid drinking
• Acting silly or ‘‘cutesy’’
Signs of Intoxication
Psychomotor impairment
• Slurred, mumbled, or slow speech
• Swaying while sitting, standing, or walking
• Staggering, stumbling, holding onto objects for balance
• Difficulty reaching for and picking up objects
• Inability to maintain eye contact (lack of focus or
wandering gaze)
• Spilling food or drinks
• Falling down or loss of balance
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Signs of Intoxication
Cognitive impairment
• Loss of concentration or train of thought
• Delayed response to questions
• Illogical comments or answers to questions
• Impaired short- or long-term memory
• Lighting the wrong end of a cigarette
• Excessively quiet, sullen
• Consumption of lots of alcohol without thinking
• Trouble counting money or doing basic math
• Difficulty following instructions or directions
Slang words for drunk or high
3 sheets to the wind – 80 – act – annihilated – arseholed – ass out – battered – beer
goggles – bender – bent – black out – blaze – blitzed – blotto – bombed – boozy – broken
– busted – buttered – butt-toast – buzz – buzzed – cabbaged – clocked out – crossfade –
crunched – crunk –– dead – drunk – faced – faded – fit-shaced – fizzucked – flap out – fly
– forshnicked – f--ked up – full as a tick – gassed – gattered – hammed – hammered –
hellafied – hosed – housed – hurt – hurt up – in the horrors – Jimmy's talkin – juiced –
keyed – kootered – krunk – lagered up – lambasted – legless – lifted – lit – loaded – loose
– lubricated – mangled – messed up – moellered – mounted – munted – off (one's) tits –
on the razzle – out of (one's) tree – perve – perved – pickled – pie-eyed – piflicated – piss
ass drunk – pissed – plastered – polluted – poo-pooed – rat-arsed – rat-assed – retarded
– ripped – roasted – sassified – sauced – saucy – scarred – schmammered –
schnockered – schnookered – schnuckered – schwacked – shellacked – sh-t-canned – sht-faced – sh-tty – shmacked – shnockered – shwasted – sideways – slaughtered – slizzard
– sloppy – sloshed – smashed – smoked – snookered – soup sandwich – soused –
spanked – spins, the – splifficated – spun – steaming – stewed – stick a fork in – stinky –
strunk – stuck like chuck – swilled – tanked – tanked up – three sheets to the wind –
throwed – tight – tiltered – tipsy – toasted – toasted oats – toasty – toddy stricken – toes
up – toe up – tore back – tore up – tore up from the floor up – torn down – tor up – tossed
– trashed – troubled – twisted – wacked – wankered – wasted – wavey – waxed – wet –
wetted – wreck – wrecked – zoned – zonked – zooted – zosted
Red Flag #1
• Blood Alcohol Content
– Lots of agreement on DUI and BAC, but . . .
– “There is not a universal BAC at which the
law or the experts agree that people are no
longer capable of consenting to
intercourse.”
– (Prosecuting Alcohol-facilitated Sexual Assault, American
Prosecutors Research Institute)
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Red Flag #2
• Interactions with other drugs
– Many interactions
– Potentially very significant
– BUT very difficult to determine because of
•
•
•
•
Each person’s own physiology
Tolerance
Size of dosage
Composition of illegal narcotics
Red Flag #3
• Intoxication is difficult for even
professionals to discern
– Police officers, bartenders, psychologists,
substance abuse counselors, even doctors.
• Many of us with DUI levels don’t appear to
be intoxicated
• Tolerance matters
However . . .
• As BACs increase, the visible signs will
start to appear
– Over .15 BAC most people will show one or
more visible signs of intoxication
– Problems walking are common
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Take-away:
If there are clearly
visible signs of intoxication,
the person is probably
very drunk.
Key Areas of Inquiry
•
•
•
•
•
•
•
Gender, height and weight
Timing
Quantity
Rate of injestion
Food
Other drugs
Signs of intoxication
Incapacitation
Due to Drugs or Alcohol
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INTOXICATION
≠
INCAPACITATION
Incapacitation Due to Drugs and
Alcohol
•The act of consuming alcohol or drugs is not
enough, by itself, to establish incapacitation.
•Alcohol or drug induced incapacitation is more
than:
–Being under the influence
–Being impaired
–Being intoxicated
–Being drunk, high, stoned, f----ed up, etc.
Incapacitation
In the Title IX context:
Incapacitation negates a person’s
ability to affirmatively consent to
sexual activity.
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Incapacitation
•An investigator evaluates whether the
complainant was incapacitated and thus
unable to give consent to sexual activity.
•This is a subjective, specific factual
assessment based on the available
evidence.
Incapacitation Due to Drugs or
Alcohol
• The person was incapacitated due to the
influence of drugs, alcohol, or medication
so that the person could not understand
the fact, nature or extent of the sexual
activity.
• “Incapacitation” is a state where an
individual cannot make an informed and
rational decision to engage in sexual
activity.
(Occidental College Policy)
Three steps in incapacitation
analysis
1. What is the evidence that the complainant
was under the influence of alcohol or
drugs?
2. Did the alcohol or drugs render the
complainant incapacitated? If so, what is
the evidence showing the incapacitation?
3. What did the respondent know, or should
have known, about the complainant’s
level of intoxication and/or incapacitation?
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Incapacitation Due to Drugs or
Alcohol
• Evaluating incapacitation requires an
assessment of how the consumption of
alcohol and/or drugs impacts an
individual’s:
(1) decision-making ability;
(2) awareness of consequences;
(3) ability to make informed judgments; or
(4) capacity to appreciate the nature and the
quality of the act.
(Occidental College Policy)
Incapacitation Due to Drugs or
Alcohol
•Incapacitation is very high bar.
•You can be very intoxicated, and still not
incapacitated.
•Many Title IX cases will not get to this
level.
Step 2: Assessment of
Incapacitation
• Obvious indicators:
–Physically helpless?
• Difficulty with motor skills, like
walking.
–Unable to communicate?
• Cannot communicate consent to
sexual activity.
• Cannot communicate unwillingness
to engage in sexual activity.
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Step 2: Assessment of
Incapacitation
• Other indicators:
–Does not know where they are they are, or how
they got there
–Doing things in public which are out of character
–Possible memory blackout
•Can’t recall things which others would typically
recall, such as falling down and injuring self
–Cannot coherently verbalize thoughts
–Delayed answers or illogical comments
–Bizarre or risky actions
Step 2: Assessment of
Incapacitation
• Counter-indicators:
–Stops to use or request birth control
–Stops to do things to prepare for sexual
activity
•Brushes teeth after vomiting
•Goes to restroom
•Carefully removes clothes
•Removes tampon or other impediments to intercourse
–Carries on relatively normal conversations
–Motor abilities are not impaired
Exercise:
1. What is the evidence that the
complainant was under the influence of
alcohol or drugs?
2. Did the alcohol or drugs render the
complainant incapacitated? If so, what is
the evidence showing the incapacitation?
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Step 3: Assessment of
Knowledge
If the investigator finds complainant was
incapacitated, investigator must evaluate
respondent’s knowledge of the level of
incapacitation.
Step 3: Assessment of
Knowledge
• Not “a valid excuse . . . if the Respondent knew
or reasonably should have known that the
Complainant was unable to consent to the
sexual activity [when]:
–The person was asleep or unconscious;
–The person was incapacitated due to the
influence of drugs, alcohol or medication so that
the person could not understand the fact, nature or
extent of the sexual activity;
–The person was unable to communicate due to a
mental or physical condition.”
(Occidental College Policy)
Step 3: Assessment of
Knowledge
• Potential evidence that respondent knew:
–Observed complainant ingest alcohol or drugs,
rate of ingestion, and time it occurred
–Observed complainant’s physical and verbal
behaviors
–Was told about amount of alcohol or drugs
used
–Respondent’s actions, like assisting the
complainant after she threw up
–Respondent’s comments to others about the
complainant’s intoxication
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Assessment of “Should Have
Known”
• Objective reasonable person standard.
–Was there a failure by respondent to take
reasonable steps to determine the
complainant was unable to consent due to
complainant’s incapacitation?
–Respondent’s own intoxication or
recklessness does not act as a valid excuse.
Review: Three steps in
Incapacitation Analysis
1. What is the evidence that the complainant
was under the influence of alcohol or
drugs?
2. Did the alcohol or drugs render the
complainant incapacitated? If so, what is
the evidence showing the incapacitation?
3. What did the respondent know, or should
have known, about the complainant’s
level of intoxication and/or incapacitation?
T9 Mastered –
Three day
intensive Title IX
Investigations
Training
Joint venture of
Public Interest Investigations, Inc., Los Angeles;
& Sue Ann VanDermyden and Deborah Maddux,
Sacramento.
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