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F 4.22 n1 Voluntary Intoxication–Defined: Should Not Be Given Unless There Is An Issue As To Voluntariness Of Intoxication.
CJ 4.22, which defines voluntary intoxication, is only applicable in the rare case where there is an issue as to whether the defendant’s intoxication was involuntary or voluntary. Otherwise, the instruction should not be given and it may be prejudicial because it informs the jury that a person who is voluntarily intoxicated “assumes the risk of that effect.” This language could be interpreted by the jury to preclude consideration of voluntary intoxication on the issue of whether defendant formed a requisite specific intent or other mental state. (See People v. Cameron (94) 30 CA4th 591, 600 [36 CR2d 656] [reversible error to instruct that intoxication is “not a defense” where specific intent or malice is an element]; see also FORECITE F 4.20 n3, F 4.20 n1 [Intoxication Instructions Must Not Be Given Together Without Explanation]; see also State v. Potter (UT 1981) 627 P2d 75 [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 of aggravated assault, was confusing and could have misled jury in prosecution for such crime and specific intent crimes and thus constituted error prejudicial to defendant which deprived him of a fair trial].)
Accordingly, the instruction should be given only when the voluntariness of the intoxication is at issue.
Voluntary Intoxication: Inapplicable To Prescription Drugs
*To be added at end of CJ 4.22 when appropriate:
If you find that the defendant was intoxicated, you may not consider ingestion of any prescription medicine [he] [she] may have taken in determining whether the intoxication was voluntary. Intoxication caused by the ingestion of prescription medicine taken as prescribed is involuntary intoxication.
Points and Authorities
The distinction between voluntary and involuntary intoxication is significant. Unconsciousness caused by voluntary intoxication is not a complete defense, but rather “can only have the effect of negating specific intent …” (People v. Kelly (73) 10 C3d 565, 572 [111 CR 171]; People v. Baker (54) 42 C2d 550, 575 [268 P2d 705]; see also PC 22.)
On the other hand, involuntary intoxication comes within the unconsciousness defense, codified in PC 26(4). “Unconsciousness due to involuntary intoxication is recognized as a complete defense to a criminal charge.” (People v. Cruz (78) 83 CA3d 308, 330 [147 CR 740]; see also People v. Scott (83) 146 CA3d 823, 832 [194 CR 633].)
In People v. Garcia DEPUBLISHED (90) 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. (People v. Jackson (89) 49 C3d 1170, 1194 [264 CR 852]; see also People v. Hackett DEPUBLISHED (91) 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. 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 above 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 FORECITE F 4.30a and FORECITE F 4.23a.)
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See generally, FORECITE PG VII(C).]
[Copies of the Garcia and Hackett opinions are available to FORECITE subscribers. Ask for Opinion Bank # O-140 and O-141.]
See Annotation, When intoxication deemed involuntary so as to constitute a defense to criminal charge, 73 ALR3d 195 and Later Case Service.
Involuntary Intoxication: Actual Or Constructive
Knowledge Of Potential Intoxicating Effect
*Modify CJ 4.22 ¶ 1 to provide as follows [added language is capitalized; deleted language is between <<>>]:
Intoxication of a person is voluntary if it results from the willing use of any intoxicating liquor, drug or other substance, knowing that it is capable of an intoxicating affect or when <<[he] [she] willingly assumes the risk of that affect>> A REASONABLE PERSON IN THE DEFENDANT’S CONDITION WOULD HAVE KNOWN THAT TAKING THE [LIQUOR] [DRUG] [SUBSTANCE] WOULD CAUSE INTOXICATION.
Points and Authorities
Model PC 2.08(5)(b) (1962) defines self-induced intoxication as “intoxication caused by substances that the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know ….” [Emphasis added.] In other words, if the defendant does not actually know of the potential intoxicating effect, the intoxication is involuntary unless “a reasonable person [in the defendant’s] condition would … have known that taking [the substance] would have caused intoxication.” (People v. Chaffey (94) 25 CA4th 852, 857 [30 CR2d 757.)
CJ 4.22 fails to adequately convey this requirement, choosing instead to utilize the obscure and potentially confusing concept of assumption of risk. While the CALJIC instruction was cited in People v. Wyatt (72) 22 CA3d 671, 677 [99 CR 674], the adequacy of the assumption of risk language was not at issue in Wyatt. (Wyatt considered whether intoxication due to chronic alcoholism is involuntary.) Accordingly, the assumption of risk language should be replaced with the language set forth above so that the jury will be properly instructed upon the elements of intoxication.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon or failure to adequately instruct upon a defense or defense theory violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See generally, FORECITE PG VII.]
See FORECITE F 7.32a for model instruction requiring jury to determine constructive knowledge based upon a reasonable person “in defendant’s position.”