Supreme Court of Delaware Finds Defendant Can’t Claim Involuntary Intoxication Based On Thinking He’s Taking One Illegal Drug, But Actually Ingesting a Different One

Most jurisdictions allow criminal defendants to raise an involuntary intoxication defense that can absolve them of criminal liability if they unknowingly ingested drugs or alcohol to the point of intoxication. Imagine, for instance, that a defendant thinks she’s eating regular brownies which end up being pot brownies and then is pulled over for DUI. The defendant would be able to raise involuntary intoxication as a defense. But could a defendant present expert evidence and raise an involuntary intoxication defense if she thinks she’s taking one type of illegal drug, but ends up ingesting another illegal drug? That was the question addressed by the Supreme Court of Delaware in its recent opinion in Wilkerson v. State, 2025 WL 39625 (Del. 2025).

In Wilkerson, 

While under the influence of illegal drugs, the defendant bludgeoned and killed a police officer and assaulted several others. The defendant claims that his drug-fueled rampage was the product of someone surreptitiously substituting bath salts for his methamphetamine. Based on that substitution, the defendant sought to assert a statutory involuntary intoxication defense, but the Superior Court granted a motion in limine preventing the presentation of that defense as a matter of law. The court also concluded that the defendant’s proffered evidence in support of the defense was inadmissible.

Specifically,

Wilkerson’s counsel…retained two individuals to offer expert opinions on bath salts. Andrew Ewens, Ph.D., a board-certified toxicologist, compared drug testing panels for the Delaware Division of Forensic Science and NMS Labs. He opined that because NMS Labs tests for more bath salts analogues than the Division of Forensic Science, “not all of the potential drugs that may have been inside Mr. Wilkerson’s body” on April 25 “are known.” He further opined that “[w]ithout the testing of Mr. Wilkerson’s blood by NMS [L]abs, the possibility of Mr. Wilkerson having consumed bath salts can[no]t be ruled out.” Additionally, Wilkie Wilson, Ph.D., a faculty member at Duke University,36 compared the effects of bath salts and other drugs, such as cocaine. He opined that bath salts can be “ten times more potent than cocaine,” and that bath salts users “can be like a runaway train with no way of stopping until a crash occurs.”

After the trial judge precluded testimony by these experts and the defendant was convicted, he appealed. But the Supreme Court of Delaware rejected his appeal, concluding the Delaware’s involuntary intoxication

statute is unavailable for an actor who knowingly takes an unlawful intoxicating substance (such as methamphetamine) and experiences intoxicating effects that differ from those that the actor anticipated. Indeed, the definition of “intoxication” in Section 424 focuses on an actor’s inability to exercise control over the actor’s mental faculties due to introducing a substance into the actor’s body; it does not discriminate based on the intensity of intoxicating effects. The relevant statutory provisions provide no cover where the actor knowingly took the unlawful intoxicating substance and experienced unanticipated effects.

-CM