FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 256
Go to Volume 11 Table of Contents  -  Go to Chapter 256 Table of Contents

256.6 Intoxication, Voluntary

    256.6.2 Voluntary Intoxication: Right To / Basis For Instruction

    256.6.2.1 Duty To Instruct On Voluntary Intoxication As Defense Theory: Intoxication Instruction Required When Appropriate
    256.6.2.2 Duty To Instruct On Lesser Included Offense Based On Intoxication As Defense Theory
    256.6.2.3 Voluntary Intoxication: Evidence Must Show The Effect Of The Intoxication On The Defendant's Mental State
    256.6.2.4 Failure To Request Instruction Pinpointing Intoxication And Mental State As Ineffective Counsel
    256.6.2.5 Does Due Process Require Consideration Of Intoxication In Determining All Mental Elements Of the Charge?
    256.6.2.6 Intoxication: When Combined With Mental Impairment
    256.6.2.7 Intoxication: Impact Of Physical Trauma
    256.6.2.8 Intoxication As Defense To Accomplice Liability
    256.6.2.9 Voluntary Intoxication: Federal Circuit Model Instructions And Notes

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 256

RATIONALE: When negation of an element of the offense by intoxication is the focus of the defense, the defendant should have the right to a theory of the case instruction that assures the jury will consider the defense theory.

POINTS AND AUTHORITIES: The failure to specifically instruct on a permissible defense theory of intoxication is error which implicates the defendant's federal constitutional rights. "When the defense [of voluntary intoxication] is permitted by law ... [the] defendant is entitled to have the jury consider it in order to determine whether the government has proved all elements of the offense....Thus a defendant has a constitutional right to have the jury consider defenses permitted under applicable law to negate an element of the offense...." (U.S. v. Sayetsitty (9th Cir. 1997) 107 F3d 1405, 1413-14; see also Mann v. Gray (N.D. Ohio 1985) 622 FSupp. 1225, 1230; Kimoktoak v. State (AK 1978) 584 P2d 25, 34 ["[J]ury may consider the fact that the accused was intoxicated in determining whether he had the requisite knowledge"]; People v. Saille (CA 1991) 54 C3d 1103, 1117-20 [2 CR2d 364]; Cardwell v. State (FL 1986) 481 So2d 972, 973 [any evidence of intoxication entitles defendant to an appropriate jury instruction, even when evidence derives from cross-examination of state's witness]; Mellins v. Florida (FL 1981) 395 So2d 1207, 1209 ["Where intent is a requisite element of the offense charged and there is some evidence to support this defense, the question is one for the jury to resolve under appropriate instructions on the law"]; Holt v. State (MD 1982) 438 A2d 1386, 1387 [failure of trial court to give requested instruction on voluntary intoxication, which was supported by evidence, mandated reversal]; State v. Barrett (ME 1979) 408 A2d 1273, 1275-76 [defense of self-induced intoxication is only effective if it establishes a reasonable doubt as to existence of an element of the offense, e.g., as to the possession of the requisite culpable mental state, if such mental state is intention or knowledge]; Commonwealth v. Traylor (MA 1997) 681 NE2d 1249, 1252 [where offense requires proof of specific intent and there is evidence tending to show that accused may have been intoxicated at time of offense, the judge, if requested, must instruct jury to consider defendant's intoxication in determining whether prosecution has proved that specific intent beyond a reasonable doubt]; Taylor v. State (TX 1994) 885 SW2d 154, 158 [if there is evidence from any source that might lead a jury to conclude that the defendant's intoxication somehow excused his actions, an instruction is appropriate]; State v. Dennis (VT 1989) 559 A2d 670 [intoxication may negate specific intent]; State v. Keeton (WV 1980) 272 SE2d 817 [refusal of instruction as to defense theory that intoxication negated requisite intent to kill for murder was error]; Naugher v. State (WY 1984) 685 P2d 37, 41 [before defendant is entitled to instruction on voluntary intoxication with respect to element of specific intent in a crime involving such element, there must be evidence in the record to support the giving of the instruction].)

    Without an intoxication instruction the jurors may not understand the duty to consider such evidence. For example, in People v. Ramirez (CA 1990) 50 C3d 1158 [270 CR 286], the court held that "although the potential effect of intoxication on an individual's mental state may well be known to jurors, jurors may not be aware, without an instruction, that while [n]o act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition, it is nonetheless legally permissible for jurors to consider a defendant's voluntary intoxication in determining whether he acted with the specific intent or proscribed mental state required for a particular offense." (Ramirez, 50 C3d at 1179.)

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

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

Robinson, Criminal Law Defenses (West, 1984) (1999 Pocket Part) § 194 pp. 451-58.

See also generally, FORECITE National™ 305.9.11 [Intoxication And Criminal Liability].

See generally FORECITE National™ 256.6.2.2 [Duty To Instruct On Lesser Included Offense Based On Intoxication].

    Generally a defendant is not relieved of criminal responsibility because (he/she) acted under the influence of [alcohol] [and] [or] [drugs]. 

    However, consider the evidence as to defendant's intoxication in determining whether the prosecution proved beyond a reasonable doubt that the defendant acted with ____________ (insert mental state, e.g., intent, knowledge, etc.).

    Once the defendant produces some evidence of (his/her) intoxication, the prosecution must prove beyond a reasonable doubt that such intoxication did not negate the required ____________ (insert mental state, e.g., intent, knowledge, etc.).

    Intoxication under our law means a disturbance of mental or physical capacities resulting from the introduction of substances into the body.

    Also consider, along with all the other evidence, the degree of intoxication.

[Cf. NEW JERSEY MODEL JURY CHARGES - CRIMINAL 2C Charges Chap. 2 (2C:2-8a) [General Principles of Liability, Intoxication Negating an Element of the Offense (10/17/88)] (New Jersey ICLE 4th ed. 1997).]

    In the crime of which the defendant is accused a necessary element is the existence in the mind of the defendant of the [specific intent to ______________ ] [mental state[s] of ___________________].

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

    If from all the evidence you have a reasonable doubt whether the defendant had such [specific intent] [mental state[s]], you must find that [he] [she] did not have that [specific intent] [mental state[s]].

[See CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 4.21 [Exemptions and Defenses: Voluntary Intoxication --When Relevant to Specific Intent] p. 192 (West, 6th Ed. 1996).]

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 256

PRACTICE NOTE: "If evidence exists that the accused was intoxicated at the time of the charged offense, the jury should be instructed on intoxication and any relevant lesser-included offense(s)." (ALABAMA PATTERN JURY INSTRUCTIONS - CRIMINAL 13A-3-2(a)-(b) [Defense: Intoxication Negating Intent] p. 3-3 (Alabama Bar ICLE, 3rd ed. 1994); see also Fletcher v. State (AL 1993) 621 So2d 1010, 1018-22 [trial court’s failure to instruct on intoxication was plain error].).

    See also FORECITE National™ 256.6.2.1 [Duty To Instruct On Voluntary Intoxication As Defense Theory: Intoxication Instruction Required When Appropriate].

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

    See also FORECITE National™ 250.6.3 [Lesser Offense As Defense Theory].

    See also FORECITE National™ 256.6.2.4 [Failure To Request Instruction Pinpointing Intoxication And Mental State As Ineffective Counsel].

See also generally, FORECITE National™ 305.9.11 [Intoxication And Criminal Liability].

See generally FORECITE National™ 256.6.2.2 [Duty To Instruct On Lesser Included Offense Based On Intoxication].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 11 - CHAPTER 256

PRACTICE NOTE: "Evidence of drinking alone is insufficient to warrant the instruction; instead, there must be 'substantial evidence of the effects of the alcohol on the defendant’s mind or body.'"  [Citations omitted.] (State v. Gabryschak (WA 1996) 921 P2d 549, 550-51; see also People v. Marshall (CA 1996) 13 C4th 799, 848 [55 CR2d 347]; People v. Ramirez (CA 1990) 50 C3d 1158, 1161 [270 CR 286] [evidence must also show that the defendant's drinking "had affected his mental state in a manner that might negate the specific intent or mental state required for first degree murder"]; Legue v. State (IN 1997) 688 NE2d 408, 410 [voluntary intoxication defense is only available when evidence shows that defendant's intoxication was so great as to prevent forming requisite intent]; State v. Johnson (KS 1995) 905 P2d 94, 102 [unless intoxication evidence is sufficient to impair defendant's ability to form requisite intent, instruction on defense of voluntary intoxication is not required]; State v. Gallegos (WA 1992) 828 P2d 37, 42.)

    For example, an intoxication instruction is required when, "viewing the evidence in the light most favorable to the defendant, a jury could reasonably have found that he was so intoxicated that he lacked the intent to kill." (Larsen v. State (WI 1978) 271 NW2d 647, 650.)

See also generally, FORECITE National™ 305.9.11 [Intoxication And Criminal Liability].

See generally FORECITE National™ 256.6.2.2 [Duty To Instruct On Lesser Included Offense Based On Intoxication].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 256

    256.6.2.4    Failure To Request Instruction Pinpointing Intoxication And Mental State As Ineffective Counsel

PRACTICE NOTE: In People v. Webb DEPUBLISHED (1994) 27 CA4th 242, 251-56 [32 CR2d 582], the court reversed a murder conviction based on ineffective assistance of counsel for failure to request that the standard voluntary intoxication instruction be modified to require the jury to consider intoxication in determining whether the defendant formed the mental state of premeditation and deliberation.

    See also FORECITE National™ 295.3.2.4 [Failure Of Trial Counsel To Make Instructional Request As Ineffective Assistance Of Counsel].

OPINION AVAILABLE: For a copy of the Webb opinion, click here. [Opinion Bank # O-209].

See also generally, FORECITE National™ 305.9.11 [Intoxication And Criminal Liability].

See generally FORECITE National™ 256.6.2.2 [Duty To Instruct On Lesser Included Offense Based On Intoxication].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 256

    256.6.2.5    Does Due Process Require Consideration Of Intoxication In Determining All Mental Elements Of the Charge?

PRACTICE NOTE: Statutes which purport to permit evidence of intoxication and mental impairment to disprove elements such as intent, knowledge, malice and premeditation/deliberation may conflict with the defendant's right to present relevant evidence with respect to the elements of the offense charged. (See Rock v. Arkansas (1987) 483 US 44, 55-56 [107 SCt 2704; 97 LEd2d 37]; see also 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].) Failure to allow evidence and jury instructions which negate an element of the charge may implicate the defendant's federal constitutional rights to trial by jury and due process (6th & 14th Amendments) which require the prosecution to prove every element of the charge. (In re Winship (1970) 397 US 358, 364 [90 SCt 1068; 25 LEd2d 368]; People v. Bobo (CA 1990) 229 CA3d 1417, 1442 [3 CR2d 747]; People v. Figueroa (CA 1986) 41 C3d 714, 724 [224 CR 719]; People v. Dillon (CA 1983) 34 C3d 441, 473 [194 CR 390].)

    Hence, such statutes have been attacked as unconstitutional. (See e.g., Terry v. State (IN 1984) 465 NE2d 1085, 1088 [invalidating Indiana statute limiting voluntary intoxication to offenses requiring "intent"]; see also People v. Conrad (MI 1986) 385 NW2d 277, 281.)

    Montana v. Egelhoff (1996) 518 US 37 [116 SCt 2013; 135 LEd2d 361] rejected such a constitutional attack but failed to definitively resolve the issue. The four justices who signed the plurality opinion concluded that limitation of intoxication evidence does not offend due process because intoxication was not a defense at common law and, hence, exclusion of intoxication evidence does not implicate a fundamental right. However, none of the other five justices agreed with this analysis. The four dissenting justices argued that exclusion of evidence relevant to the determination of an essential mental element of the charge violates due process. And, the swing vote (Justice Ginsburg), who concurred only in the judgment, concluded that the Montana statute did not offend due process because it was a substantive rather than an evidentiary statute that permissibly redefined mens rea to eliminate the exculpatory value of voluntary intoxication.

    Hence, the constitutionality of the statutory exclusion of intoxication and mental impairment evidence as to certain mental elements by legislation may depend on whether the statutes are interpreted to redefine mens rea or, as is more consistent with their language and apparent intent, as simple evidentiary limitations.

RESEARCH NOTES:

Brett G. Sweitzer, Implicit Redefinitions, Evidentiary Proscriptions, and Guilty Minds: Intoxicated Wrongdoers After Montana v. Egelhoff, 146 U. Pa. L. Rev. 269, November, 1997.

Jeffrey Scott Robinette, Montana v. Egelhoff: Abandoning a Defendant's Fundamental Right To Present A Defense, 46 Cath. U. L. Rev. 1349, Summer 1997.

See also generally, FORECITE National™ 305.9.11 [Intoxication And Criminal Liability].

See generally FORECITE National™ 256.6.2.2 [Duty To Instruct On Lesser Included Offense Based On Intoxication].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 256

    See FORECITE National™ 256.7.2.2 [Mental Disease Or Defect: When Combined With Intoxication].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 256

    256.6.2.7    Intoxication: Impact Of Physical Trauma

PRACTICE NOTE: Because physical trauma may negate criminal intent and mental state (see FORECITE National™ 256.7.3.16 [Physical Trauma To Negate Mental Element Of The Charged Offense]) consideration should be given as to the combined effect of intoxication and physical trauma.

    See also FORECITE National™ 256.7.2.2 [Mental Disease Or Defect: When Combined With Intoxication].

See also generally, FORECITE National™ 305.9.11 [Intoxication And Criminal Liability].

See generally FORECITE National™ 256.6.2.9 [Duty To Instruct On Lesser Included Offense Based On Intoxication].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 256

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

    See FORECITE National™ 65.4.7 [Relevance Of Intoxication To Natural And Probable Consequences (Aider And Abettor/Accomplice)].

See also generally, FORECITE National™ 305.9.11 [Intoxication And Criminal Liability].

See generally FORECITE National™ 256.6.2.9 [Duty To Instruct On Lesser Included Offense Based On Intoxication].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 11 - CHAPTER 256

See 1st Circuit Pattern Jury Instructions - Criminal 5.03.

See also 7th Circuit Federal Jury Instructions - Criminal 6.09.

See also 8th Circuit Model Jury Instructions - Criminal 9.06.

See also 9th Circuit Model Jury Instructions - Criminal 6.8.