Let’s say you’ve had too much to drink, and you get into your car, put the key into the ignition and….the car won’t start: the battery is dead. About that time, an officer arrives and asks you to step out of the car for some field sobriety tests….
Is it possible to be convicted of attempting to drive under the influence?
The courts are not in agreement on whether there is such an offense as attempted drunk driving. In Strong v. State, 87 S.W.3d 206, for example, a Texas court held there is not. In People v. Garcia, 262 Cal. Rptr. 915, however, a California court said there was – but said also that it was "not unmindful that there might be some troublesome questions which will have to be resolved in later cases."
Troublesome questions? The court didn’t explain that cryptic comment, but one that occurs to me is that attempted DUI becomes a specific intent crime. So what, you ask?
Well, there are two kinds of offenses: those requiring only a general intent, and those requiring a specific intent. Burglary, for example, is a specific intent crime: it requires entry with the intent to commit theft or a felony; without that intent, it is just a trespass. DUI is a general intent crime: the prosecutor need only prove the act of driving under the influence – not the intent to do it.
You can, of course, be convicted of attempting to commit a criminal offense. But it follows that to attempt it you must intend to commit the offense: attempt requires a specific intent to commit the crime (along with steps toward its commission). Thus, attempted DUI would become a specific intent crime.
So, while intoxication is not defense where there is only a general intent required, it can be a defense where specific intent must be proven: intoxication can prevent the person from being able to knowingly and intelligently form the intent to accomplish the criminal act.
In other words, we may have a Catch-22: If a person is mentally and physically too impaired to drive, doesn’t that fact tend to negate the specific intent required for an attempt to drive intoxicated?
A "troublesome question"….