intoxication defense in Florida

2006See Jones v. State, 855 So.2d 611, 616-617 (Fla.2003); Johnson v. State, 769 So.2d 990, 1001-02 (Fla.2000); Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000). [3] *879 Furthermore, we have said that counsel's decision not to pursue a voluntary intoxication defense was not ineffective assistance where no evidence was presented that defendant was intoxicated at the time of the crime although there has been a history of drug abuse.

2003Similarly, in Occhicone, 768 So.2d at 1048 , and Johnson v. State, 593 So.2d 206, 209 (Fla. 1992), the Court rejected claims that counsel was ineffective for not pursuing an intoxication defense where defendant had good recall of what transpired on the night of the murders and, therefore, was not intoxicated to the level of not being able to premeditate the murders.

2012We do not “second-guess counsel’s strategic decisions about whether to pursue an intoxication defense.” See Jones v. State, 855 So.2d 611, 616 (Fla.2003).

2006See Jones v. State, 855 So.2d 611, 616-617 (Fla.2003); Johnson v. State, 769 So.2d 990, 1001-02 (Fla.2000); Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000). [3] *879 Furthermore, we have said that counsel's decision not to pursue a voluntary intoxication defense was not ineffective assistance where no evidence was presented that defendant was intoxicated at the time of the crime although there has been a history of drug abuse.

2003See Stewart v. State, 801 So.2d 59, 65 (Fla.2001) (holding that counsel was not ineffective for failing to employ a voluntary intoxication defense where, at an evidentiary hearing, defense counsel testified that he considered an intoxication defense but determined that it was not a viable defense based on the facts of the case).

2002Compare Kitchen v. State, 764 So.2d 868, 869 (Fla. 4th DCA 2000) ("Counsel may make a tactical decision not to pursue a voluntary intoxication defense, but a trial court's finding that such a decision was tactical usually is inappropriate without an evidentiary hearing."), with Stewart v. State, 801 So.2d 59, 65 (Fla. 2001) (holding that counsel was not ineffective for failing to employ a voluntary intoxication defense where, at an evidentiary hearing, defense counsel testified that he considered an intoxication defense but determined that it was not a viable defense based on the facts of the

2025(Crim.) 3.6(e)(1) and 3.6(e)(2) (providing that the defense of involuntary intoxication requires a showing that the substance was lawfully prescribed by a practitioner and that defendant used the prescription “as it was prescribed and directed by the practitioner.”); Cobb v. State, 884 So. 2d 437, 438-39 (Fla 1st DCA 2004) (“The Legislature expressly limited the use of an intoxication defense to those circumstance where the defendant's lack of specific intent or insanity is attributable to the use of a prescription medicine ‘pursuant to a lawful prescription.’ In this instance, the statutory l

2025(Crim.) 3.6(e)(1) and 3.6(e)(2) (providing that the defense of involuntary intoxication requires a showing that the substance was lawfully prescribed by a practitioner and that defendant used the prescription “as it was prescribed and directed by the practitioner.”); Cobb v. State, 884 So. 2d 437, 438-39 (Fla 1st DCA 2004) (“The Legislature expressly limited the use of an intoxication defense to those circumstance where the defendant's lack of specific intent or insanity is attributable to the use of a prescription medicine ‘pursuant to a lawful prescription.’ In this instance, the statutory l

2025(Crim.) 3.6(e)(1) and 3.6(e)(2) (providing that the defense of involuntary intoxication requires a showing that the substance was lawfully prescribed by a practitioner and that defendant used the prescription “as it was prescribed and directed by the practitioner.”); Cobb v. State, 884 So. 2d 437, 438-39 (Fla 1st DCA 2004) (“The Legislature expressly limited the use of an intoxication defense to those circumstance where the defendant's lack of specific intent or insanity is attributable to the use of a prescription medicine ‘pursuant to a lawful prescription.’ In this instance, the statutory l

2006Similarly, in Cobb v. State, 884 So.2d 437, 438-39 (Fla. 1st DCA 2004), the first district, interpreting section 775.051, stated: The legislature expressly limited the use of an intoxication defense to those circumstances where the defendant's lack of specific intent or insanity is attributable to the use of a prescription medicine `pursuant to a lawful prescription.' In this instance, the statutory language is `clear and unambiguous,' and must therefore `be given its plain and ordinary meaning.' In Cobb , the defendant sought to introduce the testimony of an expert physician to establish that

2013See id.; Dufour v. State, 905 So.2d 42, 52 (Fla.2005) (“This Court has held that it will not second-guess counsel’s strategic decisions concerning whether an intoxication defense will be pursued.”).

2007As stated in Dufour v. State, 905 So.2d 42, 52 (Fla.2005), "[t]his Court has held that it will not second-guess counsel's strategic decisions concerning whether an intoxication defense will be pursued." For all of the reasons discussed above, we uphold the trial court's denial of relief on this claim. [6] 2.

2013See Brown v. State, 894 So.2d 137, 146 (Fla.2004) (“Failure to present an intoxication defense cannot constitute ineffective assistance of counsel when the defendant asserts his innocence.”).

2006This Court concluded that "counsel cannot be deemed ineffective for failing to pursue the voluntary intoxication defense as such a defense would have been inconsistent with Williams' theory of the case [that he did not commit the murder]." Id.; see also Brown v. State, 894 So.2d 137, 146 (Fla.2004) ("Failure to present an intoxication defense cannot constitute ineffective assistance of counsel when the defendant asserts his innocence."); Rivera v. State, 717 So.2d 477, 485 (Fla.1998) (concluding that guilt phase counsel was not ineffective in foregoing a voluntary intoxication defense strategy

2006See Jones v. State, 855 So.2d 611, 616-617 (Fla.2003); Johnson v. State, 769 So.2d 990, 1001-02 (Fla.2000); Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000). [3] *879 Furthermore, we have said that counsel's decision not to pursue a voluntary intoxication defense was not ineffective assistance where no evidence was presented that defendant was intoxicated at the time of the crime although there has been a history of drug abuse.

2003Johnson v. State, 769 So.2d 990, 1001-02 (Fla.2000); see Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000) (holding that "strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct").

2006This Court concluded that "counsel cannot be deemed ineffective for failing to pursue the voluntary intoxication defense as such a defense would have been inconsistent with Williams' theory of the case [that he did not commit the murder]." Id.; see also Brown v. State, 894 So.2d 137, 146 (Fla.2004) ("Failure to present an intoxication defense cannot constitute ineffective assistance of counsel when the defendant asserts his innocence."); Rivera v. State, 717 So.2d 477, 485 (Fla.1998) (concluding that guilt phase counsel was not ineffective in foregoing a voluntary intoxication defense strategy

2004See Rivera v. State, 717 So.2d 477, 485 (Fla.1998); Remeta v. Dugger, 622 So.2d 452, 455 (Fla.1993); cf. Rose v. State, 617 So.2d 291, 294 (Fla.1993) ("When a defendant preempts his attorney's strategy by insisting that a different defense be followed, no claim of ineffectiveness can be made.") (quoting Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir.1985)).

2004See Rivera v. State, 717 So.2d 477, 485 (Fla.1998); Remeta v. Dugger, 622 So.2d 452, 455 (Fla.1993); cf. Rose v. State, 617 So.2d 291, 294 (Fla.1993) ("When a defendant preempts his attorney's strategy by insisting that a different defense be followed, no claim of ineffectiveness can be made.") (quoting Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir.1985)).

2000See Rose v. State, 617 So.2d 291 (Fla.1993).

2003In the permissible defense the defendant must show that his long term and continued use of intoxicants produced a "a fixed and settled frenzy or insanity either permanent or intermittent." Gray, 731 So.2d at 818 ; see also Cirack v. State, 201 So.2d 706 (Fla.1967).

1988See Cirack v. State, 201 So.2d 706 (Fla. 1967) (self-serving statements of intoxication alone provide no basis for expert testimony as to whether a defendant was able to distinguish right and wrong at the time of the murder).

2000See Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

2000See Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

2018“When the presumption in section 440.09(7)(b) does not apply, employer/carriers must ‘establish, by the greater weight of the evidence, that the work-related injury was occasioned primarily by the intoxication of the employee.’” See Thomas v. Bircheat, 16 So. 3d 198, 200 (Fla. 1st DCA 2009) (quoting Wright v. DSK Group, 821 So. 2d 455, 456 (Fla. 1st DCA 2002); see also Sterling v. Mike Brown, Inc., 580 So. 2d 832, 835 (Fla. 1st DCA 1991) (affirming JCC’s order finding employee’s injury was primarily caused by his intoxication even without presumption).

2018“When the presumption in section 440.09(7)(b) does not apply, employer/carriers must ‘establish, by the greater weight of the evidence, that the work-related injury was occasioned primarily by the intoxication of the employee.’” See Thomas v. Bircheat, 16 So. 3d 198, 200 (Fla. 1st DCA 2009) (quoting Wright v. DSK Group, 821 So. 2d 455, 456 (Fla. 1st DCA 2002); see also Sterling v. Mike Brown, Inc., 580 So. 2d 832, 835 (Fla. 1st DCA 1991) (affirming JCC’s order finding employee’s injury was primarily caused by his intoxication even without presumption).

2018“When the presumption in section 440.09(7)(b) does not apply, employer/carriers must ‘establish, by the greater weight of the evidence, that the work-related injury was occasioned primarily by the intoxication of the employee.’” See Thomas v. Bircheat, 16 So. 3d 198, 200 (Fla. 1st DCA 2009) (quoting Wright v. DSK Group, 821 So. 2d 455, 456 (Fla. 1st DCA 2002); see also Sterling v. Mike Brown, Inc., 580 So. 2d 832, 835 (Fla. 1st DCA 1991) (affirming JCC’s order finding employee’s injury was primarily caused by his intoxication even without presumption).

2013See Ford v. State, 955 So.2d 550, 553-54 (Fla.2007) (counsel not ineffective for presenting evidence of voluntary intoxication, even though the main defense was that the State’s case was inadequate to show defendant’s guilt, because the intoxication defense was not advanced as an admission of guilt, was secondary to the main defense, and “to the extent it was offered as a defense, it was done to defeat the premeditation element of the murder charge”).

2008See, e.g., Smith v. State, 825 So.2d at 1012 (where the defendant alleged his attorney did not tell him there was no defense to an armed trespass charge); Szymanowski v. State, 771 So.2d at 11 (where the defendant alleged ineffective assistance of counsel based on counsel's advice to reject a plea offer and counsel's failure to mount an intoxication defense).

2008See, e.g., Smith v. State, 825 So.2d at 1012 (where the defendant alleged his attorney did not tell him there was no defense to an armed trespass charge); Szymanowski v. State, 771 So.2d at 11 (where the defendant alleged ineffective assistance of counsel based on counsel's advice to reject a plea offer and counsel's failure to mount an intoxication defense).

2007It cites to Bertolotti v. State, 534 So.2d 386, 387 (Fla.1988), where the defendant claimed his counsel was ineffective for failure to raise an intoxication defense.

2007Id. at 387 .

2006See Pace v. State, 854 So.2d 167, 177 (Fla.2003) (finding counsel's rejection of an intoxication defense was not deficient performance where Pace's confession "indicated a clear recollection of the facts of the offense and involved deliberate behavior"); Davis v. State, 875 So.2d 359, 367 (Fla.2003) (finding competent, substantive evidence supported trial court's determination that counsel made an informed, strategic decision not to pursue an intoxication defense where defendant gave detailed confessions as to the circumstances of the crime that "substantially undermined the viability of a vol

2006See Pace v. State, 854 So.2d 167, 177 (Fla.2003) (finding counsel's rejection of an intoxication defense was not deficient performance where Pace's confession "indicated a clear recollection of the facts of the offense and involved deliberate behavior"); Davis v. State, 875 So.2d 359, 367 (Fla.2003) (finding competent, substantive evidence supported trial court's determination that counsel made an informed, strategic decision not to pursue an intoxication defense where defendant gave detailed confessions as to the circumstances of the crime that "substantially undermined the viability of a vol

2006In Miller v. State, 805 So.2d 885, 887 (Fla. 2d DCA 2001), this court followed Brancaccio , stating: [W]here the intoxication is involuntary, it typically has been raised in an attempt to prove an insanity defense rather than an intoxication defense.

2006See Pace v. State, 854 So.2d 167, 177 (Fla.2003) (finding counsel's rejection of an intoxication defense was not deficient performance where Pace's confession "indicated a clear recollection of the facts of the offense and involved deliberate behavior"); Davis v. State, 875 So.2d 359, 367 (Fla.2003) (finding competent, substantive evidence supported trial court's determination that counsel made an informed, strategic decision not to pursue an intoxication defense where defendant gave detailed confessions as to the circumstances of the crime that "substantially undermined the viability of a vol

2004See Rivera v. State, 717 So.2d 477, 485 (Fla.1998); Remeta v. Dugger, 622 So.2d 452, 455 (Fla.1993); cf. Rose v. State, 617 So.2d 291, 294 (Fla.1993) ("When a defendant preempts his attorney's strategy by insisting that a different defense be followed, no claim of ineffectiveness can be made.") (quoting Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir.1985)).

2004See Rivera v. State, 717 So.2d 477, 485 (Fla.1998); Remeta v. Dugger, 622 So.2d 452, 455 (Fla.1993); cf. Rose v. State, 617 So.2d 291, 294 (Fla.1993) ("When a defendant preempts his attorney's strategy by insisting that a different defense be followed, no claim of ineffectiveness can be made.") (quoting Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir.1985)).

2004See, e.g., Panuccio v. Kelly, 927 F.2d 106, 109-10 (2d Cir.1991) (where "there was a high likelihood" that the intoxication defense would have failed at trial and would have exposed the defendant to a longer sentence, "counsel served adequately during the plea negotiations because he had no duty to disclose the intoxication defense under these circumstances.") (emphasis added); Savino, 82 F.3d at 602 (relying on an assessment that the defendant could not have presented a "viable intoxication defense" in concluding that there was no showing of deficiency).