# Intoxication and Consent Laws in Washington State - Marshall & Saunders - / - Blog - /blog - Intoxication and Consent Laws in Washington State ## Intoxication and Consent Laws in Washington State Two people meet out, and both drink. They leave together. In the morning, one of them remembers the night differently, and a week later, the police call you. Washington law does not say that the use of alcohol cancels consent that was freely given. There is no drink count and no blood alcohol number that turns a night into a felony. The State has to prove something far more specific, and in an alcohol use case, it often cannot. Our experienced [Seattle criminal defense lawyers](https://www.marshallandsaunders.com/) defend people accused after alcohol-related encounters throughout Washington. We rebuild the night from records rather than recollection: messages, bar tabs, door badges, rideshare pings, and surveillance footage that gets overwritten in thirty days. ## How Intoxication Affects Consent Under Washington Law [RCW 9A.44.010(2)](https://app.leg.wa.gov/RCW/default.aspx?cite=9A.44.010) defines consent as actual words or conduct indicating freely given agreement to sexual intercourse or sexual contact. Alcohol does not erase that agreement. Intoxication becomes legally significant only when it rises to mental incapacity or physical helplessness, and both are narrow terms with statutory definitions that prosecutors routinely stretch. ### [Mental Incapacity](https://www.marshallandsaunders.com/blog/mental-incapacity-and-consent) Mental incapacity, defined in RCW 9A.44.010(7), is a condition existing at the time of the offense that prevents a person from understanding the nature or consequences of the act of sexual intercourse, whether produced by illness, defect, the influence of a substance, or some other cause. Impaired judgment is not incapacity. Regret is not incapacity. Drinking enough to do something a sober person would not have done is not incapacity either. The question is narrower: could the person understand what was happening? Disorientation, incoherent speech, or an inability to make basic decisions can bear on that, and no single sign settles it. ### Physical Helplessness Physically helpless, defined in RCW 9A.44.010(12), means a person who is unconscious or, for any other reason, is physically unable to communicate unwillingness to an act. That is a far smaller category than drunk. Someone who is talking, walking, texting, and answering questions is not physically helpless, however much they had to drink. The line lies in the ability to communicate, not in the quality of anyone's decisions. ## How Drunk Is Too Drunk to Consent Washington sets no blood alcohol concentration for sexual consent. The 0.08 percent figure comes from the impaired driving statute ([RCW 46.61.502](https://app.leg.wa.gov/rcw/default.aspx?cite=46.61.502)) and has nothing to do with this question, though it carries an authority in a jury's mind that prosecutors are happy to borrow. Alcohol also affects people unevenly depending on how much they drank, how fast, whether they ate, their tolerance, and what medications or other substances were in their system. What matters is what the person could actually do that night, not what a toxicologist estimates their blood alcohol was hours after the fact: - Spoke coherently and recognized other people - Walked or moved without assistance - Used a phone or exchanged messages - Made decisions or arranged transportation - Communicated about the sexual activity - Lost consciousness or became unable to respond These facts do not create a fixed test. They form part of the broader assessment of what the person could comprehend and communicate at the time. ## Consent When Both People Were Drinking Both people are usually drinking, and the State rarely treats that symmetrically. One person's drinking does not prove the other lacked capacity, and our client's intoxication does not establish that consent existed. Each person's condition stands on its own, and one of them can be fully capable of deciding and communicating while the other is not. Alcohol also affects memory, which is where these cases get distorted. A blackout is not unconsciousness. A person in a blackout can walk, talk, flirt, consent, and remember none of it the next morning. That gap is then reported as an absence of consent because the absence of a memory feels like the absence of an event. It is not the same thing, and Washington law does not treat it as such. ## The Defense the Statute Gives You Where the State's claim rests solely on mental incapacity or physical helplessness, [RCW 9A.44.030(1)](https://app.leg.wa.gov/RCW/default.aspx?cite=9A.44.030) gives the accused person an affirmative defense: that our client reasonably believed the other person was not mentally incapacitated or physically helpless. The defense must prove it by a preponderance of the evidence. That changes the question. It stops being how much the complainant drank and becomes what a reasonable person in that room would have believed. So the ordinary details matter: - What the complainant said, and how clearly. - Whether they ordered their own drinks. - Whether they used their phone, and what they typed. - Whether they arranged their own ride. - Whether anyone else present thought something was wrong. The State works backward from a blood alcohol estimate calculated hours later. We work forward from what was happening in front of our client. The defense does not apply to forcible compulsion cases, and it relies on records that disappear quickly, which is why the investigation has to start immediately. ## Evidence in an Intoxication and Consent Case An intoxication and consent allegation rarely turns on one statement alone. Investigators may compare each person’s account with communications, witness observations, surveillance footage, medical information, and records showing where the parties went and what they did. Relevant evidence may include: - Text messages, direct messages, and social media communications - Photographs and videos - Bar, restaurant, apartment, or hotel surveillance - Receipts, bank records, and alcohol purchases - Rideshare records and phone location data - Medical records and toxicology results - Witness descriptions of speech, movement, awareness, and behavior - Communications or conduct after the encounter Post-encounter behavior must be assessed in context. Continued communication, an apology, a delay in reporting, or a later change in tone does not necessarily establish whether consent existed. ## Which Charges an Alcohol Case Can Produce Alcohol-related assault allegations get charged a few different ways depending on what the State says happened and how it claims consent was absent: - [**Rape**](https://www.marshallandsaunders.com/rape-defense-attorney) **in the second degree:** Under [RCW 9A.44.050](https://app.leg.wa.gov/RCW/default.aspx?cite=9A.44.050). Charged where the State alleges sexual intercourse with a person incapable of consent by reason of being physically helpless or mentally incapacitated. - **Indecent liberties:** Under [RCW 9A.44.100](https://app.leg.wa.gov/rcw/default.aspx?cite=9a.44.100). Charged where the State alleges that a person knowingly caused another to have sexual contact while that person was incapable of consent for the same reasons. - **Rape in the third degree:** [Under RCW 9A.44.060](https://app.leg.wa.gov/RCW/default.aspx?cite=9A.44.060). Charged where the State alleges sexual intercourse without freely given agreement, in circumstances that do not amount to Rape in the First or Second Degree. Which charge gets filed says less about what happened than about how a prosecutor read a police report written the same week. Charges are filed high and negotiated later. What the State can actually prove is a separate question, and it is the only one that decides the case. ## College Disciplinary Proceedings and Criminal Cases An encounter involving college or university students may lead to both a criminal investigation and a campus disciplinary complaint. A school may apply a consent or incapacitation policy that is broader than Washington criminal law, along with different procedures and standards of proof. Nothing a student says in a Title IX interview stays in the Title IX file. A written response drafted to sound cooperative can end up in a detective's hands, and a hearing transcript can end up in a charging decision. Our Title IX defense attorneys handle the school proceeding and the police investigation together, because a move that helps in one can be fatal in the other. ## Responding to an Intoxication and Consent Allegation The State will build a story out of whatever it can find. Our work is to make sure what it finds is complete, and that depends heavily on what you do in the first few days. After an accusation: - Do not contact the accusing person to argue about the allegation, seek an explanation, request a retraction, or apologize. - Preserve texts, direct messages, photos, videos, receipts, payment records, rideshare and location history, witness names, and relevant social media content. - Do not delete, alter, or ask anyone else to remove records. - Do not provide a written or recorded statement to police before speaking with a lawyer. - Follow any protection order, no-contact directive, or campus restriction. Then call us. The evidence that helps you is the evidence that expires first. ## Speak with Our Washington Sex Crime Defense Attorneys These cases turn on facts nobody agrees about: what was said, how impaired someone looked, what anyone actually remembers, and whether a single objective record supports either version. The State has a blood alcohol estimate and a statement taken days later. We have about thirty days to get the footage. Marshall & Saunders has defended people accused of rape and other sex offenses in Washington since 1997. [Contact us](https://www.marshallandsaunders.com/get-a-consultation) before the State's account of that night becomes the only one anybody has. ## Accused After a Night of Drinking? [Contact Us](https://www.marshallandsaunders.com/contact-us) You need a defense attorney in your corner before the State's version of that night becomes the only one on record. Call Marshall & Saunders. blog ## Our Fresh News and Articles [View All Posts](https://www.marshallandsaunders.com/blog) --- Marshall & Saunders — [https://www.marshallandsaunders.com/blog/intoxication-and-consent](https://www.marshallandsaunders.com/blog/intoxication-and-consent)