“Dave’s Not Here!”: The Intoxication Defense in California Law

by Michael P. Burns (March 28, 2018)

Recent concern over the use of opioid medications, whether obtained with or without a prescription, has prompted many employers to carefully examine the sobriety of their employees. Studies have shown that two-thirds of those who misuse or abuse opioids are employed. In addition to affecting productivity, drug and alcohol abuse create concerns for insurers when industrial injuries occur.

Under Labor Code 5705(b), an applicant’s intoxication is a defense to workers’ compensation benefits when the employer can prove the employee’s intoxication was the proximate cause of the injury. Because this defense has been narrowly applied, insurers should be aware of the requirements to prove the intoxication defense.

Labor Code section 3600(a)(4) provides for compensation for an industrial injury only if the injury is “not caused by the intoxication, by alcohol or the unlawful use of a controlled substance of the injured employee...” A "controlled substance" is a "drug, substance or immediate precursor" listed in Health & Safety Code section 11054–11058 and include opiates, hallucinogens, depressants, stimulants, narcotics, and derivatives thereof.

The statute does not define "intoxication" or what it means to be “intoxicated.” The WCAB has generally applied this on a substance-by-substance and case-by-case basis, but it is generally understood as having diminished capability, both physical and mental, as the result of using alcohol or drugs.

Intoxication can be proved by blood, urine or breath samples taken after the accident, either by law enforcement or medical providers. Evidence of intoxication must be carefully preserved through a chain of custody showing that the sample analyzed was, in fact, applicant’s. Opposing counsel may occasionally stipulate that the sample was accurately taken and belongs to applicant. If not, the testimony of the technicians needs to be secured. It is recommended that the testimony be preserved, in deposition or affidavit form, and presented at trial. The testimony should show the accuracy of the sample taken, similar to presenting such evidence in a criminal proceeding.

In addition to proving actual intoxication, a successful intoxication defense requires that the defendant connect the intoxication to the cause of the injury or death. In legal terms, this is known as “proximate causation.” Proximate causation generally requires that the intoxication be a substantial or material cause of the injury or death. It does not need to be the sole cause, however. (Smith v. WCAB, 123 Cal.App.3d 763 (1981).)

It is not sufficient to assert that an employee consumed drugs or alcohol before an injury and is therefore barred from compensation. Rather, a more comprehensive analysis is necessary, including the type and amount of substances consumed, the general effect of a standard dose of the substance (alcohol or drugs), and, if possible, witness testimony regarding the employee’s behavior and actions before the injury.

In cases involving alcohol, the general rule is that the blood-alcohol percentage, coupled with expert medical testimony as to the effect of that percentage on a person of applicant’s height, weight, will be sufficient to show causation. In Smith v. WCAB, applicant was killed in a vehicular accident and his blood alcohol content was .25%. The medical evaluator concluded that this would be sufficient to be "clinically drunk". This would have, in the doctor’s opinion, contributed to the particular accident. The WCAB and the Court of Appeal found that the defendant had established a proximate cause between the intoxication and the accident. The combined weight of the medical evidence and testimony of the physician that a .25% intoxication would impair judgment and slow reaction time provided the basis to conclude that the intoxication was the proximate cause of the accident.

In contrast, in Barrett v. WCAB, the Board held that the employer did not prove the defense of intoxication. In that case, applicant's blood-alcohol level was 0.06, and the defendant did not provide sufficient proof that this caused actual intoxication. The defendant did not produce a medical opinion stating that a blood-alcohol level of 0.06 would render the employee intoxicated. In addition to medical evidence on the effect of the clinical level of intoxicants, lay testimony is also an important factor in many cases. In Padgett v. WCAB (1980) 45 Cal.Comp.Cases 1221, two witnesses testified that the employee smelled like alcohol, stumbled, slurred, fell down stairs. The court held that the intoxication defense barred applicant’s claim. Similarly, in Republic Indemnity Co. v. WCAB, 138 Cal. App. 3d 42, the court concluded that if a person with a 0.429 blood alcohol level falls, it is reasonable to conclude that the intoxication was the proximate cause of the fall.

A lack of witnesses can be equally damaging. In Amaya v. WCAB (1998) 63 Cal.Comp.Cases 140, the applicant was an admitted heroin user who had last used heroin a few days before falling from a roof. The employer did not present any evidence on the effect of applicant’s last dose of heroin. The court noted that the employer “might have carried this burden by showing the amount of narcotics in applicant's system, along with a medical explanation of the probable effect of such an amount.” It might also have provided “evidence from other employees that applicant appeared to be under the influence of narcotics either at the time of the accident or on previous occasions.” However, without this evidence, the intoxication defense did not bar applicant’s claim.

The intoxication defense is not applicable when the employer encourages or requires the employee to use intoxicants. Also, the defense is barred where the employer gives tacit consent to intoxicant usage. In McCarthy v. WCAB, 12 Cal.3d 677 (1974), the applicant was killed while driving home from an office Christmas party. The employer was aware of and tacitly approved of drinking at the office, and the death was not barred by the intoxication defense. Recent changes to the law in California add a new twist to the intoxication defense. California legalized the recreational use of marijuana, effective January 1, 2018. While marijuana is legal at the state level, it is still prohibited by federal law. Labor Code §3600(a)(4) precludes liability for a claim of injury “caused by the intoxication, by alcohol or the unlawful use of a controlled substance, of the injured employee.”

The California Supreme Court ruled that there is no general right to use medical marijuana, and employee can be legally terminated for violation of drug-free workplace rules, including marijuana use. (Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal. 4th 920.) THC, the psychoactive ingredient in marijuana, produces a “high” that usually lasts approximately two hours. However, THC can be present in a blood or urine test for several days or even weeks. New testing methods, such as saliva swabs, can detect the recent use of marijuana.

In Glanton v. WCAB, the WCAB held that defendant did not prove that applicant was intoxicated at time of his injury, despite applicant’s positive blood test for THC. Applicant admitted to smoking marijuana two days before the injury. Applicant’s medical expert concluded that a positive test result for THC did not necessarily show active psychomotor impairment, and that a positive THC level did not demonstrate impairment at the time of injury.


Insurers should act carefully when confronted with a possible intoxication situation. If blood tests are secured, the identity of the persons taking the tests should be confirmed. The chain of custody must confirm that the blood taken was applicant’s, and that the test was accurately performed.

Investigators should take witness statements concerning applicant’s behavior before and during the incident, including slurred speech, odors, and coordination. The investigator should secure statements from witnesses. If applicant has a history of drug or alcohol abuse, this should be explored and confirmed.

Medical evidence should be obtained showing the effect of the level of intoxication on the applicant’s injury. A specialist in toxicology or internal medicine may provide critical evidence on this subject. An insurer would also be well advised to secure an independent examination and report under Labor Code section 4050 for use in discovery.

Finally, the employer should also confirm whether there was a policy of overlooking drugs or alcohol in the workplace (such as restaurant or bar employees drinking with customers or coworkers). By carefully and methodically assembling medical and lay evidence, an employer may successfully defend against questionable claims caused by intoxication.

Michael Burns is a Partner at Bradford & Barthel’s San Jose location. Before joining B&B, Mr. Burns practiced civil litigation and employment law. He currently serves as an arbitrator for the Santa Clara County Bar Association’s Fee Dispute Resolution Program. Since joining B&B, his primary areas of practice include workers’ compensation and subrogation. Mr. Burns can be reached at mburns@bradfordbarthel.com or (408) 392-8202.

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