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9 Ohio State Journal of Criminal Law 545 (2012)


According to what is here called the “Intoxication Recklessness Principle,” a defendant who, thanks to voluntary intoxication, is unaware of a condition of which a reasonable person would have been aware is to be treated as though he were reckless with respect to that condition, rather than negligent. And, according to what is here called the “Intoxication Negligence Principle,” a defendant who is unaware of a condition thanks to voluntary intoxication is to be compared to a sober reasonable person when we ask whether his obliviousness was reasonable. When applied in tandem, as these principles often are, a defendant whose mental state is not criminal at all, considered independently of the recent history of intoxication that gave rise to it, will be treated as though he were reckless. Through a proposed model that illuminates the nature of both recklessness and negligence, this paper identifies a set of conditions under which it is justified to employ the Intoxication Recklessness Principle, even in conjunction with the Intoxication Negligence Principle. When the relevant conditions are met, the voluntarily intoxicated negligent defendant is in a mental state that is just as bad as many reckless defendants. This paper, then, defends the law’s current use of the Intoxication Recklessness Principle, but with qualifications, for in identifying the conditions in which the principle is justifiably employed; conditions are also identified in which it is not.

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