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

T9 MASTERED | 1 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

T9 MASTERED | 2 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.”

T9 MASTERED | 3 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.

T9 MASTERED | 4 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 • Survey of 772 college students were undergraduates heavy drinkers, showed that “40 having had five or percent reported more drinks in a row experiencing a in the past 2 weeks.” 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

T9 MASTERED | 5 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

T9 MASTERED | 6 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 – sh- t-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)

T9 MASTERED | 7 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

T9 MASTERED | 8 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

T9 MASTERED | 9 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.

T9 MASTERED | 10 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?

T9 MASTERED | 11 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.

T9 MASTERED | 12 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?

T9 MASTERED | 13 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

T9 MASTERED | 14 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.

T9 MASTERED | 15