Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 18.10 (4th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
October 2016 Update
Part IV. Defenses
WPIC CHAPTER 18. Miscellaneous Defenses
WPIC 18.10 Voluntary Intoxication
No act committed by a person while in a state of voluntary intoxication is less criminal by reason of that condition. However, evidence of intoxication may be considered in determining whether the defendant [acted] [or] [failed to act] with(fill in requisite mental state).
NOTE ON USE
Use this instruction for voluntary intoxication cases only. It does not apply to a case in which involuntary intoxication is claimed.
Use bracketed material as applicable.
Approval of instruction. The former version of this instruction has been cited with approval in State v. Coates, 107 Wn.2d 882, 735 P.2d 64 (1987), State v. Hackett, 64 Wn.App. 780, 827 P.2d 1013 (1992) and State v. Corwin, 32 Wn.App. 493, 649 P.2d 119 (1982).
Nature of defense. The Supreme Court definitively interpreted the statute in State v. Coates, 107 Wn.2d 882, 735 P.2d 64 (1987). The court explained that the prohibition on making an act “less criminal” meant that evidence of intoxication “cannot form the basis of an affirmative defense that essentially admits the crime but attempts to excuse or mitigate the actor's criminality.” Rather, “evidence of voluntary intoxication is relevant to the trier of fact in determining in the first instance whether the defendant acted with a particular degree of mental culpability.” State v. Coates, 107 Wn.2d at 889. The court further explained that “[t]he State always has the burden of proving the defendant acted with the necessary culpable mental state.” State v. Coates, 107 Wn.2d at 890.
Basis for giving instruction. “[A] criminal defendant is entitled to a voluntary intoxication instruction only if: (1) the crime charged has as an element a particular mental state, (2) there is substantial evidence of drinking, and (3) the defendant presents evidence that the drinking affected his or her ability to acquire the required mental state.” State v. Gallegos, 65 Wn.App. 230, 238, 828 P.2d 37 (1992) (cited in State v. Ager, 128 Wn.2d 85, 904 P.2d 715 (1995)). Physical manifestations of intoxication may provide sufficient evidence from which to infer that mental processing also was affected, thus entitling the defendant to an intoxication instruction: expert testimony is not necessarily required because the effects of alcohol are commonly known. State v. Walters, 162 Wn.App. 74, 83, 255 P.3d 835, 840 (2011).
The evidence “must reasonably and logically connect the defendant's intoxication with the asserted inability to form the required level of culpability to commit the crime charged. … 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.’” State v. Gabryschak, 83 Wn.App. 249, 252–53, 921 P.2d 549 (1996) (citations omitted). See also State v. Everybodytalksabout, 145 Wn.2d 456, 479, 39 P.3d 294 (2002) (defendant not entitled to a voluntary intoxication instruction where he did not present sufficient evidence to show his intoxication affected his ability to acquire the required mental state); State v. Harris, 122 Wn.App. 547, 552–53, 90 P.3d 1133 (2004) (same); State v. Hall, 104 Wn.App. 56, 60–61, 14 P.3d 884 (2000) (same); State v. Priest, 100 Wn.App. 451, 455, 997 P.2d 452 (2000) (same).
Particular mental state at issue. Although the defense of voluntary intoxication is usually associated with crimes requiring proof of a specific intent, the defense is also appropriate when the defendant is charged with a crime for which a particular mental state, such as knowledge, is required. State v. Lottie, 31 Wn.App. 651, 644 P.2d 707 (1982) (arson). In a prosecution for first degree murder, premeditation and intent are two distinct elements, and the defendant is entitled to an instruction such as WPIC 18.10 upon a showing that intoxication affected either element. State v. Brooks, 97 Wn.2d 873, 651 P.2d 217 (1982).
When the crime charged (first degree assault) involved a particular mental state (intent to inflict great bodily harm), it was error to refuse defendant's request to give this instruction when there was “substantial evidence that the defendant was in fact intoxicated at the time the crime was committed and that the intoxication affected his ability to acquire the requisite mental state.” State v. Hackett, 64 Wn.App. 780, 785 n. 2, 827 P.2d 1013 (1992) (defense applies to intoxication by drugs as well as alcohol, and diminished capacity instruction was not broad enough to cover voluntary intoxication falling short of mental illness or disorder). Cf. State v. Furman, 122 Wn.2d 440, 858 P.2d 1092 (1993) (a diminished capacity instruction may be adequate when based, in whole or in part, on defendant's voluntary consumption of drugs or alcohol).
In State v. Swagerty, 60 Wn.App. 830, 810 P.2d 1 (1991), the trial court did not err by refusing to give a voluntary intoxication instruction in a prosecution for statutory rape. The appellate court found that the defense of voluntary intoxication was not available to the defendant, because the Legislature's definition of statutory rape did not include specific intent or any other mental state.
In State v. Guilliot, 106 Wn.App. 355, 365–66, 22 P.3d 1266 (2001), the court held that a defense based upon hypoglycemia is similar to an intoxication defense. A jury instruction based upon hypoglycemia is proper only if the defendant produces substantial evidence of a link between an insulin reaction and the defendant's ability to form the culpable mental state at the time of the crime.
Voluntary intoxication is intoxication not caused by force or fraud, State v. Hutsell, 120 Wn.2d 913, 845 P.2d 1325 (1993) (Sentencing Reform Act case, reaffirming prior holdings that an alcoholic or addict is not an “involuntary” intoxicate), or by medicinal use of drugs, State v. Gilcrist, 15 Wn.App. 892, 552 P.2d 690 (1976).
Burdens of proof and persuasion. It is constitutionally permissible to require the defendant to bear the initial burden of coming forward with evidence of intoxication and its effect upon the defendant's mental state before giving an instruction on intoxication. This evidence need not come from defendant's witnesses but may be elicited from witnesses called by the State. State v. Finley, 97 Wn.App. 129, 982 P.2d 681 (1999), overruled on other grounds in State v. Ben, 114 Wn.App. 148, 55 P.3d 1169 (2002). However, the jury should not be instructed that the defendant has the burden of proving voluntary intoxication by a preponderance of the evidence. Such an instruction unconstitutionally relieves the prosecution of the burden of proving beyond a reasonable doubt the mental state that is the element of the crime charged. State v. Carter, 31 Wn.App. 572, 643 P.2d 916 (1982).
The State has no burden of disproving intoxication, and the jury should not be instructed that it does. State v. Coates, 107 Wn.2d 882, 735 P.2d 64 (1987). It is sufficient to instruct the jury that the State must prove the mental state that is an element of the crime charged. State v. James, 47 Wn.App. 605, 736 P.2d 700 (1987); State v. Sam, 42 Wn.App. 586, 711 P.2d 1114 (1986); State v. Fuller, 42 Wn.App. 53, 708 P.2d 413 (1985).
Comparison with involuntary intoxication. “[I]nvoluntary intoxication does constitute an allowable defense” which “may absolve the defendant of any criminal responsibility.” State v. Hutsell, 120 Wn.2d at 920; State v. Stacy, 181 Wn.App. 553, 571–72, 326 P.3d 136, 146, review denied 181 Wn.2d 1008 (2014) (discussing both involuntary and voluntary intoxication instructions); see also Fine and Ende, 13B Washington Practice: Criminal Law With Sentencing Forms § 3204 (2d.). An involuntary intoxication defense must be proved by the defendant by a preponderance of the evidence. State v. Riker, 123 Wn.2d 351, 367, 869 P.2d 43 (1994), citing State v. Gilcrist, 25 Wn.App. 327, 328–29, 606 P.2d 716 (1980) (temporary insanity caused by involuntary intoxication). Involuntary intoxication is not covered in these pattern instructions.
For a general discussion of the burden of proof on defenses, see WPIC 14.00 (Defenses—Introduction).
As to the defense of diminished capacity due to a mental condition other than intoxication, see WPIC 18.20.
[Current as of December 2015.]
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