Wisconsin Statutes
Wis. Stat. § 939.42 (2026)
Intoxication
✓ current as of July 2026
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939.42939.42 Intoxication. An intoxicated or a drugged condition of the actor is a defense only if such condition is involuntarily produced and does one of the following:
939.42(1)(1) Renders the actor incapable of distinguishing between right and wrong in regard to the alleged criminal act at the time the act is committed.
939.42 AnnotationTo be relieved from responsibility for criminal acts, it is not enough for a defendant to establish that the defendant was under the influence of intoxicating beverages; the defendant must establish that degree of intoxication that means the defendant was utterly incapable of forming the intent requisite to the commission of the crime charged. State v. Guiden, 46 Wis. 2d 328, 174 N.W.2d 488 (1970).
939.42 AnnotationThis section does not afford a defense when drugs were taken voluntarily and the facts demonstrate that there was an intent to kill and conceal the crime. Gibson v. State, 55 Wis. 2d 110, 197 N.W.2d 813 (1972).
939.42 AnnotationEvidence of addiction was properly excluded as a basis for showing “involuntariness.” Loveday v. State, 74 Wis. 2d 503, 247 N.W.2d 116 (1976).
939.42 AnnotationThe intoxication instruction did not impermissibly shift the burden of proof to the accused. State v. Reynosa, 108 Wis. 2d 499, 322 N.W.2d 504 (Ct. App. 1982).
939.42 AnnotationA correct statement of the law under this section should be conveyed to the jury by instructing it that it must consider the evidence regarding whether the defendant was intoxicated at the time of the alleged offense. State v. Foster, 191 Wis. 2d 14, 528 N.W.2d 22 (Ct. App. 1995).
939.42 AnnotationIt is not a requirement of the defense of involuntary intoxication when intoxication is caused by prescription drugs that the defendant did not know of the drug’s intoxicating effect. Intoxication resulting from compliance with a physician’s advice will not be deemed voluntary just because the defendant was aware of potential adverse side effects. State v. Gardner, 230 Wis. 2d 32, 601 N.W.2d 670 (Ct. App. 1999), 98-2655.
939.42 AnnotationTo be entitled to an instruction on involuntary intoxication, the defendant must come forward with credible and sufficient evidence of intoxication to the extent that the defendant was unable to distinguish right from wrong. State v. Gardner, 230 Wis. 2d 32, 601 N.W.2d 670 (Ct. App. 1999), 98-2655.
939.42 AnnotationCriminal Law: Alcoholism as a Defense. Herald. 53 MLR 445 (1970).
939.42 AnnotationDue Process and the Voluntary Intoxication Defense. Larson. Wis. Law. Feb. 2019.
Notes of Decisions
Cited in 45
cases (3 in the last 5 years), 1969–2026 · leading case: State v. Donyil L. Anderson, Sr., 2014 WI 93 (Wis. 2014).
State v. Donyil L. Anderson, Sr., 2014 WI 93 (Wis. 2014). “Gardner involved an involuntary intoxication defense under Wis. Stat. § 939.42 , as opposed to an insanity defense under Wis.”
State v. Dale R. Neumann, 2013 WI 58 (Wis. 2013). “939, subchapter III, Defenses to Criminal Liability ( Wis. Stat. §§ 939.42 -.49). 33 In 1993, two bills were introduced in the Wisconsin Senate, one repealing and the other extending treatment-through- prayer provisions.”
Monroe Cnty. Dep't of Human Servs. v. Kelli B., 2004 WI 48 (Wis. 2004). “The person may also rely on such statutory defenses as "intoxication," Wis. Stat. § 939.42 , "mistake," Wis. Stat.”
State v. Schulz, 307 N.W.2d 151 (Wis. 1981). “In Johnnies , the claim was made that the use of the Guiden language (specifically the term "complete drunkenness") in the context of a jury instruction misstated the law of intoxication as set forth in sec. 939.42(2), Stats. 76 Wis.2d at 585 .”
State v. Gardner, 601 N.W.2d 670 (Wis. Ct. App. 1999). “However, the trial court's reliance on Flat-tum was misplaced, as explained below. Gardner sought to introduce Spiro's testimony in support of his defense of involuntary intoxication.”
State v. Watkins, 2002 WI 101 (Wis. 2002). “See Wis. Stat. §§ 939.42 , 939.43, 939.44, 939.”
Gish v. Dittmann, 291 F. Supp. 3d 864 (W.D. Wis. 2017). “Gish contended that Opland-Dobs was ineffective for failing to investigate and inform Gish of a potential involuntary intoxication defense under Wis. Stat. § 939.42 (1). He pointed to police reports that Gish was found "wandering on the train tracks[,] soaking wet[,] unsteady on…”
Loveday v. State, 247 N.W.2d 116 (Wis. 1976). “The comments of the Judiciary Committee following that section in the 1953 *512 Draft make it clear that the term “involuntary" only contemplated intoxication through force, fraud or mistake.”
Barrera v. State, 325 N.W.2d 722 (Wis. 1982). “[2] Section 939.42(2), Stats. [3] In State v.”
Price v. Thurmer, 637 F.3d 831 (7th Cir. 2011). “2d 321, 324 (1978); see Wis. Stat. § 939.42 . And that is the only verdict Price seeks; he doesn’t deny having mounted the machete attack and that it was a criminal attack unless it was caused by insanity.”
State v. Flattum, 361 N.W.2d 705 (Wis. 1985). “42 allows a complete defense if the specific intent to commit the crime is negated by the defendant's intoxicated condition. The determination is to be made by the trier of fact.”
Jones v. State, 230 N.W.2d 677 (Wis. 1975). “The defense of intoxication under sec. 939.42, Stats., [13] may, if proved, negate the element of intent to kill requisite *346 to a first-degree murder conviction.”
— Wis. Stat. § 939.42(1) — 5 cases
State v. Gardner, 601 N.W.2d 670 (Wis. Ct. App. 1999). “However, the trial court's reliance on Flat-tum was misplaced, as explained below. Gardner sought to introduce Spiro's testimony in support of his defense of involuntary intoxication.”
Loveday v. State, 247 N.W.2d 116 (Wis. 1976). “The comments of the Judiciary Committee following that section in the 1953 *512 Draft make it clear that the term “involuntary" only contemplated intoxication through force, fraud or mistake.”
State v. Kolisnitschenko, 267 N.W.2d 321 (Wis. 1978).
State v. Repp, 362 N.W.2d 415 (Wis. 1985).
State v. Heisler, 344 N.W.2d 190 (Wis. Ct. App. 1983).
— Wis. Stat. § 939.42(2) — 10 cases
State v. Schulz, 307 N.W.2d 151 (Wis. 1981). “In Johnnies , the claim was made that the use of the Guiden language (specifically the term "complete drunkenness") in the context of a jury instruction misstated the law of intoxication as set forth in sec. 939.42(2), Stats. 76 Wis.2d at 585 .”
Barrera v. State, 325 N.W.2d 722 (Wis. 1982). “[2] Section 939.42(2), Stats. [3] In State v.”
State v. Gardner, 601 N.W.2d 670 (Wis. Ct. App. 1999). “However, the trial court's reliance on Flat-tum was misplaced, as explained below. Gardner sought to introduce Spiro's testimony in support of his defense of involuntary intoxication.”
Roe v. State, 290 N.W.2d 291 (Wis. 1980).
State v. Kolisnitschenko, 267 N.W.2d 321 (Wis. 1978).
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