Blacking out: charged by the police but have no memory of what happened

It is not unusual for someone to get drunk, allegedly commit a crime, and when sober realize that the police criminally charged them for something they don't remember.

The accused may have been given the charging court paperwork at the scene before going home, at the police station after spending time in a cell sobering up (ie. drunk tank), or at the hospital. Either way, they find themselves in the precarious position of facing criminal charges and simultaneously forgetting what happened. Sometimes those who black out have no idea why the police charged them or have only a vague recollection of events.

Like any other out of custody criminal case, the accused will receive either a Form 9 Appearance Notice or a Form 10 Undertaking. This paper will have a fingerprint date and a court date, list the charges the accused is facing, and any other conditions they have to abide by while their case is pending. Typical conditions include to stay away from certain places/areas, no contact direct/indirect with special other people (co-accused or victims), abstain from alcohol, possess no weapons, etc.

The charging paperwork will list the Criminal Code section and offence title but not provide a description of what allegedly occurred. The most common forms of charges where the accused cannot remember what happened due to blackout binge drinking and/or drug use are:

1. Mischief (both under and over $5000)
2. Assault
3. Uttering Threats
4. Sexual Assault, and
5. Impaired Driving

These cases are always difficult to assess in the beginning because there is a substantial range of potential behaviour that can lead to any of these charges. While some charges may be able to be dropped, others may result in going to jail for years and receiving a permanent criminal record.

These cases are normally the result of alcohol and/or drug related incidents where the accused’s behaviour may be completely out of character and perhaps even hard to believe afterwards. Before pressing charges the police would have already interviewed witnesses and alleged victims as to what happened. If there is evidence of a crime, they will press charges and the case will be dealt with in court.

Sometimes allegations of racism, hate, homophobia, etc. are made by witnesses

It is not uncommon for alleged victims or 3rd party witnesses to assume or think that the accused’s behaviour was motivated by hate or racism. This may not be the case at all, but if they claim something improper was said or the actions were motivated by hatred it can put the accused, who does not remember anything, in a very difficult position.

Crown Attorneys and Judges view any allegations of racism or hatred as an extremely aggravating factor. They make the charges more difficult to get dropped and that the accused is subject to a longer jail sentence if found guilty. The alleged racism may be nothing more than an assumption of a 3rd party whose memory, judgment, or heat of the moment recollection may have been inaccurate. Nevertheless, the accused is labeled as a racist or a bigot despite perhaps this not being true at all.

The police often don’t bother to tell the accused exactly why they are charging them.

We see many cases where the police basically informed the accused of the charges and their responsibilities to attend court, fingerprints/mugshot, etc. The accused will have to wait until the disclosure in the case is provided to their defense lawyer by the Crown Attorney which often takes months to receive. Since they don’t remember what happened they are left wondering/worrying about what the potential allegation may be.

In cases where the accused is held for bail they will hear some of what the allegation is in the bail court. Those who get out on bail receive a Form 11 Release Order. If there is no bail hearing and the accused is given a Form 9 Appearance Notice or Form 10 Undertaking they may have no idea what happened for several months.

The Canadian criminal justice system moves slowly and unlike most other entities does not operate in a way geared towards good "customer service". This can be upsetting for those who wrongly expect to receive answers and solutions quickly. Given the extremely serious potential consequences of being criminally charged, and heightened anxiety levels caused by a lack of memory of what happened, the accused and their family often experience significant mental anguish throughout the waiting process.

A lot of the people charged after a night out of binge drinking have limited experience with alcohol

Most of the cases we see do not relate to long term chronic alcoholic drinkers. These cases do exist but most of our clients tend to get charged after a binge drinking episode. Clients come from all backgrounds and ages, but younger people tend to have less experience with alcohol. As such they don’t know how much they can safely consume. They also may not know how they react when drunk.

Some people get violent, aggressive, and careless when intoxicated. Others fall asleep. Everyone is different. Many of the people who end up criminally charged after a night out drinking did not realize beforehand that they were capable of acting that way when under the influence. They may never have been that intoxicated previously. Someone also may have provoked them and they were unable to control their response due to intoxication.

Is alcohol/drug intoxication a valid defence/excuse for committing a crime? If I can’t remember what happened how can I be legally held responsible?

Being intoxicated through your own volition is not a defence to the behaviour that subsequently occurred. If this were the case, virtually every DUI would be thrown out of court. The law is well established that you are responsible for your actions even if they are out of character due to intoxication.

While intoxication is never an excuse to evade responsibility, it is a recognized, treatable, and preventable issue for most people. This is especially true for binge drinking incidents where the accused may not have consumed alcohol for many months prior to the charges. The criminal justice system, including Judges and Crown Attorneys recognize that counselling and education for responsible drinking (or to abstain entirely) can be remedial and lower the risk for the person to reoffend.

A lower risk to the public is considered a mitigating factor in court. If an accused receives treatment and counseling regarding proper alcohol use this can help prevent them from binge drinking again in the future. As such, having alcohol as the primary cause is not necessarily a bad thing as there are treatment options available that the accused can undertake to mitigate their case.

In addition to alcohol or drug treatment the accused may also complete other tasks as suggested by their lawyer to help their case (restitution, community service, etc.)

For cases that involve long term chronic alcohol abuse, there are also rehab treatment options available that are medically supervised and able to safely address the addiction. Even in cases of long term chronic use, the courts will also give credit to those who work to free themselves from addiction. This may include in house long term rehab that is not easy to undertake. Given the effort required this is something that can substantially help the accused in court (and in life generally).

My son/daughter, husband/wife, partner etc. was charged by the police. They were intoxicated and are claiming to forget everything that happened.

Often the parents of the accused or spouse will call us looking for information about the charges. There may be times where the accused is lying about not remembering, but in most alcohol related cases they truly have no memory of what happened.

Many of the people getting charged have no prior criminal records and therefore have a lot to potentially lose. They are often students, professionals, and business owners. Some are in the immigration/IRCC system. Depending on what happens with their case they may lose their job, find themselves unemployable, unable to travel to the USA and other countries, and facing deportation if they are not a Canadian Citizen.

Given the seriousness of the potential consequences, it is particularly upsetting for both the accused and their family when they find themselves in the dark in terms of not knowing what happened. If the accused has no memory it makes it virtually impossible for a lawyer to provide the specifics of what to expect prior to going to court.

If they knew exactly what the allegation was a lawyer may be able to say “if this is handled correctly the charges can likely be dropped”, which can provide some level of comfort. It would be irresponsible for a lawyer to make such a statement without having any idea what the allegation is. All of the typical alcohol related offences (mischief, assault, uttering threats, sexual assault, DUI) can carry sentences of years in jail, a criminal record, sex offender registry, driving prohibitions, etc.

While we can sometimes make educated guesses based on the release conditions and other known factors there is often a lot of room for unexpected surprises in the disclosure that make the case much worse than anticipated for some.

How do I know my son or daughter was not drugged by someone else? Perhaps they took something without knowing what it was?

We get a lot of calls from parents who are shocked that their child (often late teens or a young adult) has been criminally charged by the police. When the child is unable to recall what may have happened this makes things even more stressful. Often their last memory is going to a party or out with some friends. Consuming alcohol was likely part of the plan, but not blacking out and getting criminally charged by the police.

The parent(s) and the accused will often wonder if they also consumed some other drug in addition to alcohol that caused them to black out. This is entirely possible. It could be either intentional or unintentional in the moment as they may not have been sure about, or were misled as to what they were taking. In some cases a drug may have been slipped into their drink by a 3rd party for malicious purposes. This includes Rohypnol/roofies or other sedatives/date rape drugs.

Other narcotics such as magic mushrooms/shrooms, opioids, or meth may have been consumed either voluntarily or involuntarily. There may be circumstances where an involuntary ingestion of drugs can help the defence.

More information on the most common forms of charges laid by police in blackout drinking and/or drug related cases

Everyone who is charged by the police will at a minimum be informed of what charges they are facing. Even if they have no memory of what happened and no idea why they are being charged, it is useful to research the specific Criminal Code charges themselves.

Please see our resources below for more information on the specifics, consequences, and court procedures relating to common alcohol/drug blackout related criminal charges:

1. Mischief Under or Over $5000
2. Assault
3. Uttering Threats
4. Sexual Assault
5. Impaired Driving/DUI/Over 80/Refuse Breath Sample

If you, your child, spouse, or someone close to you has been charged criminally after blacking out, please call us today for a free consultation.

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*2024 Results: the percentage of 99% of clients avoiding a criminal record (conviction) stated on this page is based solely on Lawyer Mark Zinck's personal representation of approximately 2000 criminal defence case clients as of the year 2024. Past results are not necessarily an indication of future results.

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