Intoxication defense can be tough sell for Elson

Claiming intoxication as a defense is a tough sell to a jury or a judge, and defense attorneys say the key is prove the person was so intoxicated that he/she couldn't intentionally make the decision to commit the crime.

Keith Elson, Jr. 56, of Cedar Rapids, charged with first-degree kidnapping, claimed intoxication as his defense last week during his bench trial.

Elson is accused of kidnapping Amanda Daniel, 20, a Kwik Shop clerk and sexually assaulting her at his apartment May 17, 2010. Elson's defense at trial didn't dispute the kidnapping or sexual assault, only that he was heavily intoxicated and had diminished capacity to form specific intent to commit the acts.

Voluntary intoxication as a defense isn't an absolute defense and can only be used in “specific intent crimes,” which require that a defendant acted knowingly and acted with a specific purpose in mind like murder, burglary or theft, said Greg Hurley, a lawyer and senior analyst with the National Center for State Courts in Williamsburg, Va.

Claiming intoxication as a defense is a tough sell to a jury or a judge, and defense attorneys say the key is prove the person was so intoxicated that he/she couldn't intentionally make the decision to commit the crime.

Guy Cook, a Des Moines defense attorney, said a person being drunk at the time of an alleged crime doesn't excuse guilt.

"Rather, it can be a defense only when it causes a mental disability which makes the person incapable of forming specific intent to commit the crime," Cook said.

Cook said the "fighting" issue is whether the defendant had the mental capacity to make the decision to commit the act before he/she was intoxicated. If the person did, then it's not a defense.

Robert Rigg, Drake Law School professor, said Elson may have better luck with a judge because the judge understands the law and limitations.

"It's difficult for an average juror who's probably gone out and got drunk at one time or another to understand getting to the point of kidnapping and sexually assaulting someone," Rigg said. "You have to show that the person had more than average level of intoxication. How successful it is depends on the facts in a  specific case. It generally has to be extreme."

Michael Rehberg, a forensic toxicologist, testified Elson had blood alcohol content of .216 when he was admitted to the hospital and was likely even higher because his blood was diluted from fluids he was given.

Rehberg said someone intoxicated at that level can't plan or organize. He said Elson would be incapable of forming specific intent.

Police officers and Daniel testified Elson didn't appear to be intoxicated. In a video surveillance tape, police said he didn't seem to stumble or act intoxicated and Daniel said he started drinking beer after sexually assaulting her.

Other challenges with jurors would be getting them to understand through an expert that alcohol  consumption may not be a free choice if the defendant is an alcoholic, why the person didn't get treatment for the problem, and can an expert testify the defendant sought treatment for his mental illness in the past, Mark Brown, a Cedar Rapids defense attorney, said.

In Elson's case, Janeice Piltingsrud, an Iowa City psychotherapist, testified she treated Elson from 2008-09 for  depressive and anxiety disorders and substance abuse. She also said he probably suffered from post-traumatic stress stemming from childhood abuse.

Members of Elson's family testified they witnessed several incidents of beatings and other child abuse by Elson's father upon him.

The state's rebuttal witness, Dr. Michael Taylor, a Des Moines psychiatrist, agreed Elson suffered from substance abuse disorder, mainly alcohol and cocaine, but he had the capacity to form specific intent and wasn't "diagnosed with any psychological disorder to make him do what he did."

Taylor said he considered Elson's comments to Daniel during the abduction in making his evaluation that Elson understood his actions.

Daniel testified Elson apologized to her after sexually assaulting her and explained to her sex was the only way to get high other than using cocaine.