‘Voluntary intoxication’ defense to be axed if new state bill passes

ST. CHARLES TOWNSHIP – Kane County State’s Attorney Jamie Mosser and Assistant State’s Attorney Greg Sams drafted a bill to make it harder for a person accused of committing a crime while under the influence of drugs or alcohol to use their voluntary intoxication as an affirmative defense.

House Bill 5271, sponsored by state Rep. Stephanie Kifwit, D-Oswego, passed out of the House 104-0 with one present April 19. It arrived in the Senate on April 24.

HB 5271 would amend state law to render voluntary intoxication inadmissible for the purpose of canceling out a defendant’s “criminal state of mind.” It also prohibits a defense attorney from making similar arguments to a judge or jury, according to the release from Mosser’s office.

“If evidence of the defendant’s intoxication, whether voluntary or involuntary, is admitted, the trier of fact would be instructed that voluntary intoxication is not a defense to the crime charged,” according to the release.

“I commend the committee for recognizing the importance of HB 5271 in enhancing public safety and ensuring fairness in our legal system,” Mosser said in the release. “This bill represents a critical step forward in addressing the use of voluntary intoxication as a defense, thereby strengthening our ability to hold individuals accountable for their actions.”

Defense attorney Gary Johnson said he didn’t think the amendment would make much difference.

“The law on voluntary intoxication is already very strict,” Johnson said. “They didn’t need to make it any harder. Sometimes people are so intoxicated they cannot form the intent. And that is such a rare defense and even more rarely successful.”

Mosser’s office did not immediately respond to an email asking how many times the defense has been used and used successfully in Kane County.

A 2002 amendment to state law already removed voluntary intoxication as an affirmative defense.

An affirmative defense is when a defendant gives evidence to negate criminal or civil liability, even if it is proved the defendant committed the alleged acts.

According to Illinois law, “a person who is in an intoxicated or drugged condition is criminally responsible for conduct unless such condition is involuntarily produced and deprives him of substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.”

In 2023, the Illinois Supreme Court held in People v. Santana Grayer that while Illinois does not recognize the affirmative defense of voluntary intoxication, evidence of voluntary intoxication “may be considered by the trier of fact when determining whether the State has proven that defendant had the requisite mental state for specific-intent offenses,” according to the release.

The Illinois Sheriffs’ Association and other state’s attorneys offices supported HB 5271, according to the release.

Mosser and Sams both testified on behalf of the bill before the House Judiciary Committee, according to the release.

Kifowit filed the bill in February. Co-sponsors include state Reps. Dave Vella, D-Rockford; John Cabello, D-Machesney Park; Jeff Keicher, R-Sycamore; and Anthony DeLuca, D-Chicago Heights.

“I am honored to work with State’s Attorney Mosser and sponsor HB 5271, which seeks to clarify and strengthen our laws to better protect our communities,” Kifowit said in the release. “This bipartisan effort underscores our commitment to promoting public safety and ensuring justice for all Illinois residents.”