Drug and Alcohol Defense Act Exposed

The Drug and Alcohol Defense Act, included in the 1995 Sourcebook of American State Legislation, was adopted by ALEC's Civil Justice Task Force at the Annual Meeting on August 8, 2002, amended at the Spring Task Force Summit March 29, 2003, and approved by the full ALEC Board of Directors April, 2003. ALEC has attempted to distance itself from this piece of legislation after the launch of ALECexposed.org in 2011, but it has done nothing to get it repealed in the states where it previously pushed for it to be made into law.

CMD's Bill Summary

This bill gives defendants in personal injury lawsuits a defense against liability by claiming the plaintiff was intoxicated at the time and was at least 50% responsible for the injury (or was fleeing from apprehension for a crime). Instead, this law would open the door to introducing evidence that could prejudice a jury or judge against the plaintiff.

ALEC Bill Text

Summary

The Drug, Alcohol and Criminal Activity Defense Act would establish a defense in all personal injury actions if

(1) a claimant as a result of the influence of alcohol, drugs, or any combination of alcohol and drugs, is determined to be more than 50 percent liable for the accident or event which resulted in his or her harm, or

(2) the claimant was harmed while engaging in, fleeing from, or being apprehended for a crime. (States that retain the doctrine of contributory negligence should use the contributory negligence alternative; states that apply the slight/gross rule should use that alternative.) The bill requires the intoxicated individual to assume full responsibility for personal injuries to less culpable defendants and society in general.

Model Legislation

{Title, enacting clause, etc.}

Section 1. {Title.}

This Act shall be known and may be cited as the Drug and Alcohol Defense Act.

Section 2.

(A) In any civil action, it shall be a complete defense to such action if:

(1) the claimant was intoxicated, or was under the influence of intoxicating alcohol, or any drug, or any combination of alcohol and drugs, and that as a result of such intoxication or the influence of the alcohol or drug the claimant was more than 50 percent responsible for the accident or event which result in the claimant’s harm, or

(2) the claimant’s harm occurred while the claimant was engaged in,

a. a crime for which the claimant was subsequently convicted, or

b. fleeing the police, or

c. being apprehended for the commission or attempted commission of a crime, and

d. the claimant was convicted under Federal or State law, including conviction based on a guilty plea or plea of nolo contendere, or

e. it is proven in any civil proceeding by a preponderance of the evidence that the claimant was engaged in a crime, fleeing from the police, or being apprehended for the commission or attempted commission of a crime, when the harm occurred. Or

f. if the defendant is not convicted as defined in section 2(A)(2)(d), the actions described in sections 2(A)(2)(a, b, and c) are relevant evidence in any civil proceeding against the claimant, where the claimant is alleging harm.

(B) For purposes of this section, the determination of whether a person was intoxicated or was under the influence of intoxicating alcohol or any drug shall be made pursuant to applicable [state] law.

(C) As used in this section, the term "drug" means

a. any illegal drug as defined in, (citation), or

b. any prescription medication or over the counter medication, if used in combination with alcohol or any illegal drug as defined in (citation),

c. any prescription medication or over the counter medication, if used in a manner contrary to medical advice or printed advice accompanying the prescription or over the counter medication.

ALTERNATIVE A {CONTRIBUTORY NEGLIGENCE}

Section 2.

(A) In any civil action, it shall be a complete defense to such an action that the claimant was intoxicated or was under the influence of intoxicating alcohol or any drug and that as a result of such intoxication or the influence of the alcohol or drug the claimant contributed to the accident or event which resulted in the claimant's harm.

ALTERNATIVE B {SLIGHT/GROSS RULE}

Section 2.

(A) In any civil action, it shall be a complete defense to such an action that the claimant was intoxicated or was under the influence of intoxicating alcohol or any drug and that as a result of such intoxication or the influence of the alcohol or drug the claimant was more than slightly responsible for the accident or event which resulted in the claimant's harm.

Section 3. {Severability clause.}

Section 4. {Repealer clause.}

Section 5. {Effective date.}

ALEC's Sourcebook of American State Legislation 1995; adopted by ALEC's Civil Justice Task Force at the Annual Meeting August 8, 2002; amended at the Spring Task Force Summit March 29, 2003. Approved by full ALEC Board of Directors April, 2003.