WPI 12.01 Voluntary Intoxication

Use this instruction only if there is sufficient evidence to take the issue of voluntary intoxication to the jury. Use this instruction whether the intoxication was produced by alcohol or any drug.

Use WPI 16.03 (Intoxication of Person Injured or Killed—Defense) when the intoxication of the person injured or killed is asserted as a defense pursuant to RCW 5.40.060.

This instruction is not applicable if there is an issue whether a statute, ordinance, or administrative rule relating to driving while under the influence has been violated. In such instances, use WPI 60.01.01 (Violation of Statute, Ordinance, or Administrative Rule—Negligence Per Se).

The bracketed sentence should be used only if required by the particular case.

General principles. Voluntary intoxication does not excuse negligence or contributory negligence. Under the common law, intoxication was not considered to be in itself negligence; it was merely an evidentiary fact tending to prove negligence. Lubliner v. Ruge, 21 Wn.2d 881, 153 P.2d 694 (1944). More recent statutes, however, have partially modified the relationship between voluntary intoxication and negligence. See the discussion below in the Comment section entitled “Application of Statutes.”

The principles underlying this instruction apply whether the intoxication was produced by alcohol or any drug. See State v. Dana, 73 Wn.2d 533, 439 P.2d 403 (1968).

It is error to instruct the jury on the subject of intoxication if there is not sufficient evidence to warrant it. For cases that review evidence of drinking that is not sufficient to take the issue of intoxication to the jury, see Madill v. Los Angeles Seattle Motor Express, Inc., 64 Wn.2d 548, 552, 392P.2d 821 (1964); Cameron v. Boone, 62 Wn.2d 420, 425, 383 P.2d 277 (1963); White v. Peters, 52Wn.2d 824, 827, 329 P.2d 471 (1958); State v. Kirkpatrick, 14 Wn.App. 212, 213–15, 540 P.2d 450 (1975).

For cases finding evidence sufficient to take the issue of intoxication to the jury, see Hannaford v. Hornby, 53 Wn.2d 565, 335 P.2d 473 (1959); Burget v. Saginaw Logging Co., 197 Wash. 318, 321, 85 P.2d 271 (1938); Tennant v. Roys, 44 Wn.App. 305, 310–11,722 P.2d 848 (1986); Larson v. Pischell, 13 Wn.App. 576, 575, 535 P.2d 833 (1975).

Application of statutes. The general principles stated above have been partially modified by two statutes. RCW 5.40.050, enacted in 1986, states in part that any breach of duty as provided by statute, ordinance, or administrative rule relating to driving while under the influence of drugs or alcohol shall be considered negligence per se. See the Comment to WPI 60.01.01 (Violation of Statute, Ordinance, or Administrative Rule—Negligence Per Se).

RCW 5.40.060(1), enacted in 1986, provides that it is a complete defense to a personal injury claim if the plaintiff's injury was proximately caused by intoxication, if the plaintiff was more than 50 percent at fault. See the Comment to WPI 16.03 (Intoxication of Person Injured or Killed—Defense). In 1994, the Legislature added RCW 5.40.060(2), creating an exception to the general rule. The statute provides:

By enacting RCW 5.40.060(2), the Legislature effectively abrogated the holding of Geschwind v. Flanagan, 121 Wn.2d 833, 854 P.2d 1061 (1993), that RCW 5.40.060 can provide a complete defense in actions against intoxicated drivers for injuries to passive, albeit intoxicated, passengers. See Comment to WPI 12.01.01 (Driver's Intoxication—Plaintiff Passenger's Knowledge).

RCW 5.40.060 applies only to cases based on fault as defined in RCW 4.22.015 and, thus, is inapplicable in an intentional tort case. Morgan v. Johnson, 137 Wn.2d 887, 895–96, 976 P.2d 619 (1999).

RCW 5.40.060(1) provides in part that the standard for determining whether the person injured or killed was under the influence of intoxicating liquor or any drug is the same standard set forth in the statute on driving while under the influence, RCW 46.61.502. Prior to 2013, RCW 46.61.502 provided that a person is guilty of driving while under the influence of intoxicating liquor or any drug if the person drives a motor vehicle within this state while the person is either under the influence or affected by intoxicating liquor or any drug or under the combined influence of or affected by any intoxicating liquor and any drug.

In 2013, RCW 46.61.502 was amended to add “marijuana” to this list separately from “any drug”. RCW 5.40.060 was not amended similarly. Therefore, the court will need to determine whether the jury should be instructed with regard to marijuana when the evidence supports a finding that the person injured or killed was under the influence of marijuana as defined in RCW 46.61.502. See the Comment to WPI 16.03 (Intoxication of Person Injured or Killed—Defense) for a further discussion of this issue.