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256.6 Intoxication, Voluntary

          256.6.1 Miscellaneous Issues

    256.6.1.1 Voluntary Intoxication: Common Law Basis For Reducing But Not Excusing The Offense
    256.6.1.2 Availability Of Voluntary Intoxication As Defense: Specific/General Intent Analysis
    256.6.1.3 Ineffective Assistance Of Counsel For Failure To Present Evidence Of Voluntary Intoxication
    256.6.1.4 Ineffective Assistance Of Counsel For Failure To Request Instruction On Voluntary Intoxication
    256.6.1.5 Voluntary Intoxication: Specification Of Mental Element To Which Intoxication Applies
    256.6.1.6 Voluntary Intoxication: Jury "Must" Consider
    256.6.1.7 Voluntary Intoxication: Jury Must Not Consider Impact Of Prescription Drugs In Deciding Whether Intoxication Was Voluntary
    256.6.1.8 Voluntary Intoxication: Any Degree Of Intoxication Must Be Considered
    256.6.1.9 Voluntary Intoxication Or Mental Impairment: Degree Of Murder
    256.6.1.10 Voluntary Intoxication: Instruction As To Prosecution’s Burden Of Proof
    256.6.1.11 Voluntary Intoxication: Not A Defense To Recklessness
    256.6.1.12 Activation Of Mental Disease Or Insanity By Use Of Alcohol Or Drugs
    256.6.1.13 Instruction That Intoxication Is Not A Defense Must Not Be Given Together With Other Intoxication Instructions Without Explanation
    256.6.1.14 Intoxication Not A Defense: Error To Give In Specific Intent/Malice Cases
    256.6.1.15 Intoxication Or Mental Impairment: Negation Of Knowledge Element
    256.6.1.16 Voluntary Intoxication: Insulin Reaction (Hypoglycemia) As Relevant To Intoxication
    256.6.1.17 Fetal Alcohol Syndrome

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    256.6.1.1    Voluntary Intoxication: Common Law Basis For Reducing But Not Excusing The Offense

PRACTICE NOTE: The general rule at common law and in Indiana was that voluntary intoxication was not a defense in a criminal proceeding. In order for intoxication to relieve a defendant from responsibility, the crime charged must have involved specific intent, and the defendant must have been so intoxicated as to be incapable of entertaining the required specific intent. (See Greider v. Duckworth (7th Cir. 1983) 701 F2d 1228, 1232; Bates v. State (IN 1980) 409 NE2d 623, 625.) The intoxication defense, then, is not available to a defendant accused of a "general intent crime."

See generally, NCJIC 305.9.11 [Intoxication And Criminal Liability].

See generally NCJIC 256.6.2.9 [Duty To Instruct On Lesser Included Offense Based On Intoxication].

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PRACTICE NOTE: Many circuits hold that intoxication may negate specific intent but not general intent. (See e.g., United States v. Molina-Uribe (5th Cir. 1988) 853 F2d 1193, 1205-06; United States v. Lavallie (8th Cir. 1981) 666 F2d 1217, 1219; United States v. Jim (9th Cir. 1989) 865 F2d 211, 212.)

    However, a number of courts discount the specific/general intent analysis. For example, the comment to the 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 6.09 [Intoxication] (1999) discourages the use of the labels "specific" and "general" intent. Instead the comment urges that "before giving this instruction, the court should determine what state of mind, if any, the crime charged requires. [Citations.] If a particular intent is an essential element of the crime or the lack thereof is raised as an affirmative defense [citation], and the defendant has elicited evidence that he acted without that intent because of intoxication, this instruction should be given. [Citation.]"

    Accordingly, some commentators have suggested rejecting this approach in favor of asking simply whether the defendant's intoxication was so severe as to negate whatever intent is required by the crime charged. (See e.g., LaFave & Scott, Substantive Criminal Law (West, 1986) § 4.10, p. 554; see also Robinson, Criminal Law Defenses, (West, 1984) § 65(a), p. 290 [explaining that a number of jurisdictions no longer apply the specific-general intent approach due to a trend among jurisdictions to recodify their criminal statutes].) In fact, a number of jurisdictions have rejected the common-law approach and instead follow the Model Penal Code § 2.08(1)-(2), which permits voluntary intoxication to negate purpose or knowledge, but not recklessness. (Ibid.; but see State v. Brown (NM 1996) 931 P2d 69, 75 [declining to wholly abandon general-specific intent approach].)

    See also NCJIC 256.6.2.9 [Voluntary Intoxication: Federal Model Instructions And Notes].

Montana v. Egelhoff: Voluntary Intoxication, Morality, and the Constitution, Robert J. McManus, 46 Am. U. L. Rev. 1245, April, 1997.

Intoxication. LaFave & Scott, Substantive Criminal Law (West, 1986) § 4.10, pp. 544-66.

Voluntary Intoxication As A Defense. Wharton’s Criminal Law (West, 15th ed. 1994) § 111, pp. 81-115.

"Egelhoff Again," Peter Westen, 36 Am.Crim. L. Rev. 1203 (1999).

See generally, NCJIC 305.9.11 [Intoxication And Criminal Liability].

See generally NCJIC 256.6.2.9 [Duty To Instruct On Lesser Included Offense Based On Intoxication].

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PRACTICE NOTE: See People v. Popoca (IL 1993) 615 NE2d 778, 785 [failure to present voluntary intoxication evidence to negate specific intent required for attempted murder was ineffective assistance of counsel; defendant had .20% blood alcohol level and a long history of alcoholism including blackouts].

    See also NCJIC 295.3.2 [Ineffective Assistance Of Counsel At Trial].

See generally, NCJIC 305.9.11 [Intoxication And Criminal Liability].

See generally NCJIC 256.6.2.9 [Duty To Instruct On Lesser Included Offense Based On Intoxication].

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    256.6.1.4    Ineffective Assistance Of Counsel For Failure To Request Instruction On Voluntary Intoxication

    See NCJIC Chapter 256.6.2.4 [Failure To Request Instruction Pinpointing Intoxication And Mental State As Ineffective Counsel].

See generally, NCJIC 305.9.11 [Intoxication And Criminal Liability].

See generally NCJIC 256.6.2.9 [Duty To Instruct On Lesser Included Offense Based On Intoxication].

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PRACTICE NOTE: If a defendant relies on voluntary intoxication to negate a mental element of the charge the instruction on voluntary intoxication should refer to the mental element. (PATTERN INSTRUCTIONS FOR KANSAS - CRIMINAL, PIK - Criminal 3d 54.12-A-1 [Principles Of Criminal Liability-Voluntary Intoxication--Particular State of Mind] comment p. 1276 (Kansas Judicial Council, 3rd ed. 1999).)  Alternatively, the instruction which defines the mental element of the charge should refer to the voluntary intoxication defense theory.  (WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 765 [Voluntary Intoxication] comment p. 2 (University of Wisconsin Law School, 1999).)  According to the Wisconsin Jury Instruction Committee, this is the best way to instruct on defense theories that negate an element of the offense.  (Ibid.)

  RESEARCH NOTES:

See generally, NCJIC 305.9.11 [Intoxication And Criminal Liability].

See generally NCJIC 256.6.2.2 [Duty To Instruct On Lesser Included Offense Based On Intoxication].

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RATIONALE: Use of the phrase "should consider" or "may consider" could be improperly interpreted by the jurors as allowing them to disregard the evidence of intoxication.

POINTS AND AUTHORITIES: By using the term "should" instead of "must," a standard pattern instruction such as CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 4.21 [Volunteer Intoxication--When Relevant to Specific Intent] (West, 6th Ed. 1996) effectively informs the jury that while it is recommended that it consider the defense evidence, it is not obligated to do so. (See also e.g., (NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 305.10 [Voluntary Intoxication, Liquor Or Drugs-In General] p. 936 (TRCC, 1999) [ "...you should consider whether this condition affected his ability to formulate the specific intent...."].) Obviously it would violate the defendant's constitutional rights for the jury to not at least consider defense evidence or a defense theory.

    It is a fundamental tenet of the federal constitutional rights to fair trial by jury and due process (5th, 6th and 14th Amendments) that the jury consider exculpatory evidence upon which the defendant relies to raise a reasonable doubt as to any element of the charge. (See e.g., Rock v. Arkansas (1987) 483 US 44, 61 [107 SCt 2704; 97 LEd2d 37] [domestic rule of evidence may not be used to exclude crucial defense evidence]; Martin v. Ohio (1987) 480 US 228, 233 [107 SCt 1098; 94 LEd2d 267] [instruction that jury could not consider self defense evidence in determining whether there was a reasonable doubt about the State's case would violate In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368]]; Chambers v. Mississippi (1973) 410 US 284, 302 [93 SCt 1038; 35 LEd2d 297]; People v. Bobo (CA 1990) 229 CA3d 1417, 1442 [3 CR2d 747] [legislature cannot deny defendant an opportunity to prove he or she did not possess a statutorily required mental state]; see also NCJIC 300.6.2 [Right To Present A Defense: Due Process, Compulsory Process And Confrontation].)

    Similarly, standard pattern instructions are defective if they inform the jury that consideration of voluntary intoxication is permissive ("you may consider...") rather than mandatory. (See e.g., State v. Foster (WI 1995) 528 NW2d 22, 28 [jury should be instructed that it "must consider the evidence regarding whether the defendant was intoxicated at the time of the alleged offense"].)  Modification to use the word "may" instead of "must" is erroneous because a "jury could interpret this to mean that it need not consider that evidence at all." (Ibid.) To assure the defendant's constitutional right to consideration of all the evidence, the jury should be instructed that it "must" consider evidence of voluntary intoxication. (See State v. Ortiz (CT 1991) 588 A2d 127, 137-38 [instruction in murder prosecution that jury "must" consider defendant's wholly circumstantial evidence of intoxication along with all testimony in determining whether State met burden of proving defendant's specific intent beyond reasonable doubt adequately instructed jury]; see also Commonwealth v. Perry (MA 1982) 433 NE2d 446, 453 [jury should be instructed to consider evidence of intoxication in determining degree of criminal culpability]; Commonwealth v. Gould (MA 1980) 405 NE2d 927, 935 [jury should be instructed to consider evidence of substantial mental impairment in determining degree of murder].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 7.1].

See generally, NCJIC 305.9.11 [Intoxication And Criminal Liability].

See generally NCJIC 256.6.2.9 [Duty To Instruct On Lesser Included Offense Based On Intoxication].

    Consider any evidence that the defendant was intoxicated at the time of the alleged crime in deciding whether the defendant formed [the intent to _____________] [the mental state of ________________].

[Source: NCJIC.]

    As to the charge of ________________ (insert charge to which intoxication is applicable, e.g., murder), in deciding whether the prosecution has proven that the defendant ________________ (insert applicable intent, e.g., "intended to kill"), you must consider any evidence of the defendant's intoxication. You should give such evidence, whatever weight you decide it deserves.

    If, after consideration of the intoxication evidence together with all the other evidence, you have a reasonable doubt whether the prosecution proved that the defendant ____________________ (e.g., intended to kill), you must find [him] [her] not guilty of ____________________ (e.g., murder).

[Source: NCJIC.]

    You must consider any evidence of voluntary intoxication in attempting to decide whether the defendant acted with the _________________ (describe mental state) required for ____________ (specify charged offense).

[See WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 765 [Voluntary Intoxication] p. 2, ¶ 2, sent. 2 (University of Wisconsin Law School, 1999).]

    Consider any evidence that the defendant was intoxicated at the time of the alleged crime in deciding whether defendant had the required [specific intent] [mental state].

[Source: NCJIC.]

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RATIONALE: Without an explanatory instruction the jury may not understand that it should not consider the impact of an unanticipated reaction to prescription drugs in deciding whether the intoxication was voluntary.

POINTS AND AUTHORITIES: In many jurisdictions, the distinction between voluntary and involuntary intoxication is significant. In such jurisdictions, unconsciousness or temporary insanity caused by voluntary intoxication is not a complete defense, but rather "can only have the effect of negating specific intent. . . ." (People v. Kelly (CA 1973) 10 C3d 565, 572 [111 CR 171]; People v. Baker (CA 1954) 42 C2d 550, 575 [268 P2d 705].)

    On the other hand, involuntary intoxication may give rise to an unconsciousness or temporary insanity defense. "Unconsciousness due to involuntary intoxication is recognized as a complete defense to a criminal charge." (People v. Cruz (CA 1978) 83 CA3d 308, 330 [147 CR 740]; see also People v. Scott (CA 1983) 146 CA3d 823, 832 [194 CR 633]; People v. Caulley (MI 1992) 494 NW2d 853, 859.)

    Hence, the instructions should assure that the jury understands that an unanticipated reaction to prescription medication should not be considered as voluntary intoxication. (Brancaccio v. State (FL 1997) 698 S02d 597, 598 [court erred in refusing to instruct the jury on appellant's primary defense, which was that he was involuntarily intoxicated as a result of the medication he was taking pursuant to a prescription]; People v. Caulley (MI 1992) 494 NW2d 853, 859 [involuntary intoxication may be caused by prescription drugs; defendant presented sufficient evidence of his ingestion of Halcion in the period preceding the shooting, as well as expert testimony about its deleterious effects, to mandate the giving of instructions regarding involuntary intoxication]; compare Blaylock v. State (FL 1992) 600 So2d 1250, 1251; compare also Garza v. State (TX 1992) 829 SW2d 291, 294-95 [failure to instruct on involuntary intoxication caused by Prozac was not error where there was no evidence that the defendant consumed Prozac and that he was in the one percent of the population for which Prozac is believed to cause violent behavior].)

    For example, in People v. Garcia UNPUBLISHED (CA 1990) 226 CA3d 403 [276 CR 517], the court concluded that unanticipated intoxication resulting from medicine which has been prescribed -- and taken as prescribed -- is involuntary intoxication. The Garcia court reached this conclusion in reliance upon the "majority view" of the cases from other jurisdictions and upon the model Penal Code. In the context of an illegal drug taken for the purpose of becoming intoxicated, however, the intoxication is involuntary only when the ingestion is involuntary. (See People v. Jackson (CA 1989) 49 C3d 1170, 1194 [264 CR 852]; see also People v. Hackett UNPUBLISHED (CA 1991) 223 CA3d 1488 [171 CR 320].)

    Hence, when the defendant's intoxication may have resulted from a combination of two intoxicants -- one an illegal substance taken voluntarily and the second, a prescribed medicine -- involuntary intoxication should still be a defense. (See Robinson, Criminal Law Defenses (West, 1984) § 176(c) [Model Penal Code provides that intoxication from drugs taken pursuant to medical advice is involuntary].) In such a case, the defendant should have the right to have the jury instructed to disregard the ingestion of any prescription medicine in determining whether the defendant's intoxication was voluntary. (The instruction proposed below is based upon the instruction requested by the defendant in Garcia.)

    Further, the defendant also has the right to an instruction informing the jury that unconsciousness caused by involuntary intoxication is a complete defense. (See NCJIC 256.5.4 [Involuntary Intoxication May Be Complete Defense Or May Reduce Offense By Negating Required Mens Rea].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 7.3].

NOTES: To read the Garcia and Hackett opinions, click here. [Opinion Bank # O-140 and Opinion Bank # O-141].

Annotation, When Intoxication Deemed Involuntary So As To Constitute A Defense To Criminal Charge, 73 ALR3d 195.

See generally, NCJIC 305.9.11 [Intoxication And Criminal Liability].

See generally NCJIC 256.6.2.2 [Duty To Instruct On Lesser Included Offense Based On Intoxication].

    If you find that the defendant was intoxicated, you may not consider the impact of prescription medicine which was taken as prescribed in deciding whether the intoxication was voluntary. Intoxication caused by the ingestion of prescription medicine taken as prescribed is involuntary intoxication.

[Source: NCJIC.]

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RATIONALE: Any degree of intoxication which impairs the defendant formation of a required mental state should be considered by the jury. Without specific instruction the jury may wrongly assume that the intoxication evidence may not be considered unless the defendant was intoxicated to or near the point of unconsciousness.

POINTS AND AUTHORITIES: When evidence of intoxication is presented to negate a mental element of the charged crime the trial court should give an "accurate and comprehensive explanation of the relationship between the state's burden of proving the [mental element] and the defendant's evidence of his intoxication." (See e.g., State v. Ortiz (CT 1991) 588 A2d 127, 135.) Such an instruction may properly include a passage explaining that the jury should consider "any intoxication, not merely total intoxication...." (Ibid.; see also Stevenson v. Strack (S.D.N.Y. 1999) 1999 WL 294805; State v. Chasse (CT 1998) 721 A2d 1212, 1229.)

OPINION AVAILABLE: Click here. [Opinion Bank # O-309].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, NCJIC 305.9.11 [Intoxication And Criminal Liability].

See generally NCJIC 256.6.2.2 [Duty To Instruct On Lesser Included Offense Based On Intoxication].

    It is not necessary for the defendant to be highly intoxicated for this evidence to be relevant. Consider any amount or degree of intoxication in deciding whether the defendant formed [an intent to _________________] [the mental state of __________________].

[Source: NCJIC.]

    Consider any degree of intoxication, not merely total intoxication, as to whether the prosecution proved beyond a reasonable doubt that the defendant had the required intent and/or mental state.

[State v. Ortiz (CT 1991) 588 A2d 127; see also A Collection of CONNECTICUT SELECTED JURY INSTRUCTIONS - CRIMINAL 2.35 [General Jury Instructions-Intoxication] ¶ 4, last sent. (The Commission on Official Legal Publications - Judicial Branch, 3rd ed. 1996).]

    Consider any intoxication, not merely total intoxication, in deciding whether the prosecution has proved beyond a reasonable doubt that the defendant had the [intent] [and] [mental state] required to convict [him] [her] of ________ (specify the charged offense).

[See State v. Ortiz (CT 1991) 588 A2d 127, 135; Stevenson v. Strack (S.D.N.Y. 1999) 1999 WL 294805; cf. Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5:16 [Defenses-Intoxication] p. 262, ¶ 1, sent. 3 (West, 1999).]

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PRACTICE NOTE: "The Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." (In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368].)

    "In Mullaney v. Wilbur (1975) 421 US 684, 697-98 [95 SCt 1881; 44 LEd2d 508], the Supreme Court made unmistakably clear that the principle [enunciated in Winship] applies not only to facts which, if not proved, would wholly exonerate the defendant, but also to those facts which mitigate the degree of criminal culpability." (Commonwealth v. Stokes (MA 1978) 374 NE2d 87, 93.)

    Hence, the jury should be instructed to consider evidence of intoxication or mental impairment in determining the degree of murder. (See Commonwealth v. Gould (MA 1980) 405 NE2d 927, 935 fn 16; see also Commonwealth v. Perry (MA 1982) 433 NE2d 446, 453 [jury should be instructed to consider evidence of intoxication in determining degree of criminal culpability].)

    See also NCJIC 92.7.3.2 [Intentional Murder: Specification Of Prosecution's Burden As To Premeditation And Deliberation].

    See also NCJIC 92.7.3.4 [Honest Belief In Self Defense As Defense Theory To Premeditation, Deliberation Or Other Mental Elements Of Murder].

See generally, NCJIC 305.9.11 [Intoxication And Criminal Liability].

See generally NCJIC 256.6.2.2 [Duty To Instruct On Lesser Included Offense Based On Intoxication].

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RATIONALE: Because the evidence of intoxication will often be presented by the defense, the jury may improperly assume that the defendant has the burden of proving that he or she was intoxicated. Therefore, any defense theory instruction on intoxication should make it clear that the prosecution retains the burden of proof.

POINTS AND AUTHORITIES: Voluntary intoxication is an "element-defeating defense" because if such intoxication is sufficient to eliminate the presence of an element (i.e., specific intent or special knowledge), the prosecution has been prevented from meeting its burden of proving all elements beyond a reasonable doubt. (See State v. Cheatwood (LA 1984) 458 So2d 907, 911, fn 4; see also Greider v. Duckworth (7th Cir. 1983) 701 F2d 1228, 1233 [discussion of burden of proof regarding intoxication]; Joseph & LaMonica, LOUISIANA CIVIL LAW TREATISE CRIMINAL JURY INSTRUCTIONS 6.05, comments [Central--Defenses Raised: Voluntary Intoxication] p. 61 (West, 1994).)

    Hence, an instruction on intoxication should relate the intoxication to the prosecution's burden.

    See also NCJIC 250.4.4 [Defense Theory Which Negates Element Of The Offense: No Burden Of Proof On The Defendant].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, NCJIC 305.9.11 [Intoxication And Criminal Liability].

See generally NCJIC 256.6.2.2 [Duty To Instruct On Lesser Included Offense Based On Intoxication].

    As to the charge of ________________ (insert charge to which intoxication is applicable, e.g., murder), in deciding whether the prosecution has proven that the defendant ________________ (insert applicable intent, e.g., "intended to kill"), consider any evidence of the defendant's intoxication. Give such evidence, whatever weight you decide it deserves.

    If, after consideration of the intoxication evidence together with all the other evidence, you have a reasonable doubt whether the prosecution proved that the defendant ____________________ (e.g., intended to kill), you must find [him] [her] not guilty of ____________________ (e.g., murder).

[Source: NCJIC.]

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PRACTICE NOTE: See Wharton’s Criminal Law (West, 15th ed. 1994) § 111, pp. 108-09.

See generally, NCJIC 305.9.11 [Intoxication And Criminal Liability].

See generally NCJIC 256.6.2.2 [Duty To Instruct On Lesser Included Offense Based On Intoxication].

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RATIONALE: Without a defense theory instruction on insanity caused or activated by intoxication the jury may be misled by the general instructions which preclude consideration of intoxication to "excuse" a crime.

POINTS AND AUTHORITIES: "[I]nsanity caused by the use of drugs or intoxication may be a defense where the insanity is permanent and destroys the defendant’s ability to know right from wrong." (State v. Hartfield (SC 1990) 388 SE2d 802, 804.) When insanity is brought on by chronic intoxication the condition is known as "Delirium Tremens." (OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 8-36 [comments] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).) When the defendant claims that his mental faculties have been destroyed by "Delirium Tremens," the appropriate defense is the defense of insanity, not the defense of intoxication. (Ibid; see also Mott v. State (OK 1951) 232 P2d 166, 179; Wharton’s Criminal Law (West, 15th Ed. 1994) § 112, p. 123 ["if the defendant is charged with the commission of a crime, he may interpose insanity as a defense; and it matters not that the defendant’s blame worthiness, in using intoxicants, was the cause of the mental disease"].)

    Thus, while intoxication by drugs or alcohol is not itself a mental disease or defect, it may trigger the mental disease or defect. (See McIntyre v. State (AK 1963) 379 P2d 615, 616 [mental incapacity due to an alcoholic psychosis, such as "Delirium Tremens," resulting from long continued habits of excessive drinking may be an excuse or justification for homicide, the same as insanity produced by other causes]; see also Porreca v. State (MD 1981) 433 A2d 1204, 1207 [insanity which persists even after the direct influence of an intoxicant has ceased]; Parker v. State (MD 1969) 254 A2d 381, 388 [even though that insanity was caused by voluntary drinking, such insanity may excuse responsibility for a criminal act]; Commonwealth v. Ruddock (MA 1998) 701 NE2d 300, 303 [defendant may argue his lack of criminal responsibility, unless, viewing matter solely from defendant's point of view, taking into account his mental condition at time of consumption, he should have realized that drug use would cause him to lack substantial capacity to appreciate]; Commonwealth v. Herd (MA 1992) 604 NE2d 1294, 1299-1300; Commonwealth v. Brennan (MA 1987) 504 NE2d 612, 615; State v. Wicks (WA 1983) 657 P2d 781, 782 [alcohol and drug-related insanity may successfully be used as insanity defense when the influence of alcohol or drugs triggers an underlying psychotic disorder of a settled nature, such as "Delirium Tremens"].)

    See also generally NCJIC 256.5 [Intoxication, Involuntary].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

Wharton’s Criminal Law (West, 15th Ed. 1994) § 112, pp. 116-24.

Tiffany, Pathological Intoxication and the Model Penal Code (1991) 69 Neb L Rev 763.

Robinson, Criminal Law Defenses (West, 1984) § 194 pp. 451-58.

See generally, NCJIC 305.9.11 [Intoxication And Criminal Liability].

See generally NCJIC 256.6.2.2 [Duty To Instruct On Lesser Included Offense Based On Intoxication].

    Mental disease or defect caused by alcoholism, addiction to drugs, or voluntary consumption of alcohol or drugs does not relieve the defendant of criminal responsibility. However, mental disease or defect apart from his or her alcoholism, drug addiction, voluntary consumption of alcohol or drugs, may legally negate criminal intent even if the mental disease or defect is activated by the defendant's consumption of alcohol or drugs.

[See Hrones & Homans, MASSACHUSETTS JURY INSTRUCTIONS - CRIMINAL 4-6 [Insanity Defense (Effect of Alcohol or Drugs)] (Lexis, 2nd ed. 1999).]

    Mental illness or deficiency can be caused by the continued use of intoxicating liquor or drugs. 

[See WYOMING CRIMINAL PATTERN JURY INSTRUCTIONS, WPIC 8.16 [Mental Illness or Deficiency Induced by Continued Use of Liquor or Drugs] (Wyoming State Bar, 1996).]

    A brain injury is a mental defect, whether it exists separately or in combination with the ingestion of intoxicating liquor.

[Source: NCJIC.]

    Insanity may be produced by a brain injury that is exacerbated by the ingestion of intoxicating liquor.

    Both the brain injury and voluntary intoxication may contribute to the insanity, as long as the defendant's mental condition meets the legal definition of insanity as I have explained it to you.

[See People v. Welch (CA 1964) 61 C2d 786, 789-90 [40 CR 238]; cf. People v. Kelly (CA 1973) 10 C3d 565, 577 fn 1 [111 CR 171] [chronic drug usage combined with drug use just prior to the incident].]

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RATIONALE: The jury may be misled if the standard pattern instruction on intoxication (i.e., intoxication is not a defense; intoxication can negate intent) are given together without explanation.

POINTS AND AUTHORITIES: Typically, the jury may be instructed that the defendant’s intoxication, if any, is not an excuse or justification for his or her actions. (See e.g., Commonwealth v. Henson (MA 1985) 476 NE2d 947, 953; Commonwealth v. Lanoue (MA 1984) 467 NE2d 159, 165 fn 6; see also CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 4.20 [Voluntary Intoxication-Not A Defense To General Intent Crimes] (West, 6th Ed. 1996).) However, such an instruction "may leave jurors in a quandary, unless they are instructed at the same time," that intoxication does not exonerate a defendant of all criminal responsibility for his or her conduct but it may negate a specific intent or mental state. (Hrones & Homans, MASSACHUSETTS JURY INSTRUCTIONS - CRIMINAL 4-1, Comment [Self Defense] (Lexis, 2nd ed. 2000).)

    Hence, a standard instruction that intoxication does not excuse criminal conduct is obviously erroneous when given in a prosecution for a crime such as murder, which requires a mental state such as malice and an intent to kill. (See e.g., People v. Cameron (CA 1994) 30 CA4th 591, 600 [36 CR2d 656].) Moreover, the instruction acts to prevent the jury from considering the factual question of whether the defendant, due to voluntary intoxication, did or did not form the requisite mental state. (Cameron, 30 CA4th at 600.)

    For example, it is error to give a standard pattern instruction, which prohibits the application of the defense of intoxication to a general intent crime, in a case involving a specific intent crime. (See People v. Rivera (CA 1984) 162 CA3d 141, 145 [207 CR 756]; People v. Spencer (CA 1963) 60 C2d 64, 87 [31 CR 782]; People v. Kelley (MI 1970) 176 NW2d 435, 440 [principle that voluntary intoxication may not negate general intent necessary to commit crime should not be stated in jury instructions unless defendant injects intoxication defense before jury and defense is not available either because crime charged is not specific intent crime or there is insufficient evidence of intoxication]; see also State v. Crespin (NM 1974) 526 P2d 1282, 1284 [an instruction that voluntary drunkenness is no excuse or justification for crime is erroneous for use in a specific intent offense]; State v. Potter (UT 1981) 627 P2d 75, 79 [instruction that person in voluntarily produced state of intoxication may not "use his own vice" as shelter against legal consequences of his conduct, without being explicitly confined to general intent crime only, was confusing and could have misled jury].)

    Moreover, even if another instruction, which relates intoxication to specific intent, is also given, the error is not cured without explaining that such instruction is an exception to the general rule. (Rivera, 162 CA3d at 145; Cameron, (CA 1994) 30 CA4th at 599-602.)

    See also NCJIC 256.6.1.2 [Availability Of Voluntary Intoxication As Defense: Specific/General Intent Analysis].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1; 7.1].

OPINIONS AVAILABLE: To read the opinion in People v. Arroyo UNPUBLISHED (D013522), which reversed on this issue, and other opinions, click here. [Opinion Bank # O-120; [Opinion Bank # O-224]; Opinion Bank # O-246].

APPELLATE PRACTICE NOTE: When the evidence presents a factual issue as to whether the offense was murder or manslaughter, this error cannot be considered harmless. (Cameron, 30 CA4th at 602.)

See generally, NCJIC 305.9.11 [Intoxication And Criminal Liability].

See generally NCJIC 256.6.2.2 [Duty To Instruct On Lesser Included Offense Based On Intoxication].

    As to the charge of ________________ (insert charge to which intoxication is applicable, e.g., murder), in deciding whether the prosecution has proven that the defendant ________________ (insert applicable intent, e.g., "intended to kill"), you must consider any evidence of the defendant's intoxication. You should give such evidence, whatever weight you decide it deserves.

    If, after consideration of the intoxication evidence together with all the other evidence, you have a reasonable doubt whether the prosecution proved that the defendant ____________________ (e.g., intended to kill), you must find [him] [her] not guilty of ____________________ (e.g., murder).

    However, intoxication will not excuse the crime[s] of ______________ (insert crime[s] to which intoxication is inapplicable, e.g., involuntary manslaughter). If you find that the elements of that crime have been proven beyond a reasonable doubt you should return a verdict of guilty even if the defendant was intoxicated.

[Source: NCJIC.]

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    See NCJIC 256.6.1.2 [Availability Of Voluntary Intoxication As Defense: Specific/General Intent Analysis].

    See NCJIC 256.6.1.13 [Instruction That Intoxication Is Not A Defense Must Not Be Given Together With Other Intoxication Instructions Without Explanation].

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RATIONALE: If knowledge is an element of the required mens rea, it may be appropriate to instruct the jury that the knowledge element may be negated by mental impairment and/or intoxication.

POINTS AND AUTHORITIES:  Intoxication or mental impairment may negate knowledge as well as intent.  (See Wong v. Money (6th Cir. 1998) 142 F3d 313, 322 [court instructed the jury at the request of defense counsel that voluntary intoxication, while not a defense to a crime, nonetheless can negate the element of knowledge and require a verdict of not guilty]; People v. Mendoza (CA 1998) 18 C4th 1114, 1131 [77 CR2d 428]; Wyant v. State (DE 1986) 519 A2d 649, 655 [intoxication may also negate knowledge where it is a material element]; Shell v. State (MD 1986) 512 A2d 358, 367 [Model Penal Code provides that "'intoxication is not a defense unless it negatives an element of the offense except 'when recklessness establishes an element of the offense'"]; Joyce v. State (MO 1984) 684 SW2d 553, 554 [voluntary intoxication or a drugged condition negates the existence of mental states of purpose or knowledge only where such mental states are elements of offense charged]; State v. Wilson (OH 1996) 659 NE2d 292, 306 [shifting burden of proof on element of knowledge to defendant violated due process]; State v. Galvin (VT 1986) 514 A2d 705, 707 [knowledge element negated by intoxication]; State v. Lottie (WA 1982) 644 P2d 707, 709.)

    Furthermore, in a prosecution involving distinct elements with different mental states (e.g., premeditated first degree murder), the defendant is entitled to an instruction regarding negation of the mens rea upon showing that intoxication affected either element. (WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 18.10 [Intoxication] comment (West, 2nd ed. 1994); see also People v. Mendoza (CA 1998) 18 C4th 1114, 1131 [77 CR2d 428] [knowledge "closely akin" to specific intent and, therefore, jury should be instructed that knowledge may be negated by intoxication]; State v. Brooks (WA 1982) 651 P2d 217, 219.)

    See also NCJIC 64.1.5 [Accomplice Liability: Negation Of Knowledge Or Intent By Mental Impairment And/Or Voluntary Intoxication].

    See also NCJIC 256.7.1.6 [Impact Of Abolition Of Diminished Capacity On Negation Of Mental Elements By Intoxication Or Mental Impairment].

    See also NCJIC 256.7.1.2 [Mental Impairment To Negate Knowledge].

    See also NCJIC 256.7.1.3 [Low IQ (Intelligence) To Negate Knowledge].

    See also NCJIC 56.1.4 [Possession: Intoxication As Defense To Knowledge Element].

    See also NCJIC 97.3.11 [Receiving/Possession Of Stolen Property: Negation Of Knowledge Element By Intoxication Or Mental Impairment].

    See also NCJIC 77.5.3.1 [Aggravated Assault: Intoxication As Defense Theory].

    See also NCJIC 88.4.3.3 [Drug Possession: Intoxication Or Mental Impairment As Defense To Knowledge Element].

    See also NCJIC 106.4.3.1 [Possession Of Weapons: Intoxication Or Mental Impairment May Negate Knowledge].

    See also NCJIC 107.3.2 [Possession Of Firearm By Exfelon: Intoxication Or Mental Impairment May Negate Knowledge Of Weapon's Presence].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

Robinson, Criminal Law Defenses (West, 1984) pp. 286-306 [Intoxication Negating An Offense Element].

WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 18.10 [Intoxication] comment p. 221 (West, 2nd ed. 1994).

See generally, NCJIC 305.9.11 [Intoxication And Criminal Liability].

See generally NCJIC 256.6.2.2 [Duty To Instruct On Lesser Included Offense Based On Intoxication].

    An essential element of the charge is that the defendant ________________ (insert mental element, e.g., knowingly possessed the controlled substance).

    You must consider any evidence of defendant's intoxication and/or mental impairment in deciding whether the prosecution has proven beyond a reasonable doubt that the defendant ____________________ (mental state).

[Source: NCJIC.]

   The prosecution has the burden of proving beyond a reasonable doubt, that the defendant had __________________ (insert required mental state). If as a result of the defendant's [intoxication] [a drugged condition] [mental impairment] the prosecution has not met this burden you must vote to find the defendant not guilty of _________________________.

[Source: NCJIC.]

    To convict the defendant of _____________,  the prosecution must prove the defendant had a particular [state of mind] [purpose] [motive] [intent]. Evidence was offered that the defendant was intoxicated at the time of the alleged offense. Consider such evidence in deciding if the defendant had that required [state of mind] [purpose] [motive] [intent].

    If from all the evidence you have a reasonable doubt whether the defendant had the required [state of mind] [purpose] [motive] [intent], you must vote to find the defendant not guilty.

[Cf. IDAHO CRIMINAL JURY INSTRUCTIONS, ICJI [Intoxication A Relevant Issue--Defense] 1504 (Idaho Law Foundation, Inc., 1995)].

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    See NCJIC 256.7.3.13 [Insulin Reaction (Hypoglycemia) As Relevant To Intoxication].

See generally, NCJIC 305.9.11 [Intoxication And Criminal Liability].

See generally NCJIC 256.6.2.2 [Duty To Instruct On Lesser Included Offense Based On Intoxication].

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    256.6.1.17    Fetal Alcohol Syndrome

    See NCJIC Chapter 256.7.3.11 [Fetal Alcohol Syndrome (FAS)].

See generally, NCJIC 305.9.11 [Intoxication And Criminal Liability].

See generally NCJIC 256.6.2.2 [Duty To Instruct On Lesser Included Offense Based On Intoxication].