Sentencing in Cases of Intoxication

Sentencing in Cases of Intoxication

Intoxication can influence a perpetrator’s capacity for guilt without completely excluding it. In such cases, the court examines whether and to what extent the state of intoxication has a mitigating effect on the sentence. The basic idea is that a diminished capacity for responsibility may be taken into account, but the perpetrator cannot invoke self-inflicted alcohol or drug intoxication to avoid responsibility.

Intoxication can have a mitigating effect if it actually reduces the capacity for insight or control, but only if the consumption was not itself reprehensible.

Principle

Austrian criminal law treats states of intoxication with particular restraint. Anyone who voluntarily puts themselves in a state in which they are no longer fully responsible bears the responsibility for the consequences. Only if the consumption or use of the intoxicating substance appears understandable under the circumstances can this lead to a mitigation.

The court examines whether the intoxication really reduced the guilt or whether the perpetrator is responsible for it themselves, for example, because they intentionally took alcohol or drugs, even though a difficult situation was foreseeable.

Significance

§ 35 StGB regulates the distinction between self-inflicted and non-self-inflicted intoxication. The state of intoxication only has a mitigating effect if it has actually reduced the ability to recognize the injustice of the act or to behave accordingly, and this reduction is not outweighed by the self-inflicted consumption.

This means:

• If there is a comprehensible, non-negligent intoxication, the court may impose a milder sentence.
• If, on the other hand, the perpetrator deliberately became drunk or intoxicated, even though they knew that they were putting themselves in a dangerous situation, this circumstance is regarded as self-inflicted.

Thus, § 35 StGB forms a narrow exceptional circumstance within the sentencing and prevents alcohol or drugs from being used as a general excuse.

Practical Considerations

In practice, the question of evidence plays a central role. The court relies on medical and psychological reports to determine the extent to which the intoxication influenced the capacity for insight or control. It is also important whether the consumption was targeted or situational and whether the perpetrator could foresee the effect.

A mitigation of the sentence may be considered, for example, if the perpetrator became intoxicated by medication or an unconscious mixed effect without intending to do so. No mitigation occurs if the perpetrator knew or should have known that the consumption would impair control over their behavior.

The decision always requires an overall assessment: the degree of impairment, the type of intoxicating substance, the circumstances of consumption and personal responsibility jointly determine the sentence.

Sebastian Riedlmair
Harlander & Partner Attorneys „Eine Alkoholisierung kann nur dann strafmildernd wirken, wenn sie die Schuldfähigkeit tatsächlich beeinträchtigt hat und nicht selbst verschuldet war. Das Gericht bewertet dabei immer den konkreten Einzelfall.“

Central Criteria for the Assessment

• Type and cause of intoxication: Alcohol, drugs or medication have different effects and influence the capacity for guilt in different ways.
• Voluntariness of consumption: The more consciously the intoxication was brought about, the lower the mitigating effect.
• Recognizability of the endangerment: Anyone who could foresee that they would get into a dangerous state cannot invoke mitigation.
• Actual restriction of the capacity for control: Mere alcohol consumption is not enough; the decisive factor is the demonstrable impairment.
• Overall behavior before, during and after the act: Remorse, cooperation and insight can be additionally evaluated.

Relationship to the Special Grounds for Mitigation

§ 35 StGB is closely related to § 34 StGB. While § 34 StGB mentions other mitigating circumstances such as remorse, compensation for damages or youthful inexperience, § 35 StGB refers to the special situation of intoxication.

Both can be taken into account at the same time if they do not overlap. This means that alcohol intoxication can have an additional mitigating effect if other exculpatory circumstances are also present. The decisive factor is always the overall situation and how severely the perpetrator was actually impaired, as well as what responsibility they bear for their condition.

Your Benefits with Legal Assistance

A criminal proceeding is a significant burden for those affected. Serious consequences threaten right from the start – from coercive measures such as house searches or arrests, to entries in the criminal register, to custodial or monetary penalties. Errors in the initial phase, such as thoughtless statements or insufficient preservation of evidence, often cannot be corrected later. Economic risks such as claims for damages or procedural costs can also be substantial.

Specialized criminal defense ensures that your rights are protected from the outset. It provides security in dealing with the police and public prosecutor’s office, protects against self-incrimination, and creates the basis for a clear defense strategy.

Our law firm:

• examines whether and to what extent the accusation is legally sustainable,
• accompanies you through investigation proceedings and main hearing,
• ensures legally sound applications, statements, and procedural steps,
• assists in defending against or settling civil law claims,
• protects your rights and interests vis-à-vis the court, public prosecutor’s office, and victims.

Peter Harlander
Harlander & Partner Rechtsanwälte „Machen Sie keine inhaltlichen Aussagen ohne vorherige Rücksprache mit Ihrer Verteidigung. Sie haben jederzeit das Recht zu schweigen und eine Anwältin oder einen Anwalt beizuziehen. Dieses Recht gilt bereits bei der ersten polizeilichen Kontaktaufnahme. Erst nach Akteneinsicht lässt sich klären, ob und welche Einlassung sinnvoll ist.“

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