The California Legal Defenses of
Involuntary Intoxication and Voluntary Intoxication

It's no secret that alcohol and drugs are often involved when people commit crimes. According to statistics compiled by the United States Department of Justice (DOJ), alcohol is a factor in 19% to 37% of violent crimes.1 The DOJ also reports that 32% of inmates in state prison, and 26% of inmates in federal prison, say they committed their crimes under the influence of illegal drugs.2

But what you may not know is that, in some cases, you MAY be able to beat charges for a crime you committed under the influence of alcohol or drugs. The legal defenses of involuntary intoxication and voluntary intoxication can help you do this.

Of course it's not true that no one can be punished for a crime they committed while drunk or high. But the California involuntary intoxication defense says that no one can be found guilty of a crime they committed while under the influence of drugs or alcohol that they did not choose to consume.3

Even if you did choose to consume drugs or alcohol and then committed a crime, you may still avoid or reduce criminal liability because of the voluntary intoxication defense. This California legal defense can help a defendant show that he or she lacked the intent necessary to be convicted of certain so-called "specific intent" crimes.4

The voluntary intoxication defense can also help to reduce charges of murder to lesser charges, by showing that the defendant could not have had the "malice aforethought" required for a murder conviction.5

In this article, our California criminal defense attorneys6 explain the legal defenses of involuntary intoxication and voluntary intoxication under California law by addressing the following:

1. Defense of involuntary intoxication

1.1. Complete defense

1.2. What is considered "involuntary" intoxication?

1.3. Burden of proof

2. Defense of voluntary intoxication

2.1. What is considered "voluntary" intoxication?

2.2. Not a complete defense

2.3. What is a "specific intent" crime?

2.4. Defense to murder charges

3. Related legal defenses

3.1. Unconsciousness

3.2. Mistake of fact

3.3. Insanity

If you would like more information after reading this article, we invite you to contact us at Shouse Law Group.

You may also find helpful information in our related articles on California Legal Defenses; Penal Code 451 and 452 PC California Arson Laws; Penal Code 245(a)(1) PC Assault with a Deadly Weapon (ADW); Penal Code 240 PC California Assault Law; California's Aiding and Abetting Laws; Penal Code 496 PC Receiving Stolen Property; Penal Code 21a and 664 PC Attempted Crimes in California Criminal Law; Penal Code 182 PC California's Criminal Conspiracy Laws; Penal Code 470 PC California Forgery Laws; Vehicle Code 2800.1 VC California's "Evading an Officer" Law; Penal Code 187(a) PC California's Murder Law; California Penal Code 192(b) PC California's Involuntary Manslaughter Law; Mistake of Fact as a Legal Defense under California Law; and California's Insanity Defense.

1. Defense of involuntary intoxication

1.1. Complete defense

The great thing about the legal defense of involuntary intoxication is that it is a complete defense to a crime. This means that you cannot be found guilty of ANY crime that you committed while involuntarily intoxicated.7

Why is this? The California legislature has stated in Penal Code 26 PC that no one can be found guilty of an act they committed without being conscious that they were committing it.8 (This is what is known as the ["unconsciousness defense"]. Severe intoxication-when someone does not know what they're doing because they're under the influence of drugs or alcohol-is considered a form of unconsciousness...IF the person did not choose to get intoxicated. 9

1.2. What is considered "involuntary" intoxication?

But the tough thing about the involuntary intoxication defense is that it's pretty hard to show that you were intoxicated involuntarily.

Generally speaking, you are involuntarily intoxicated if either of the following occurred:

  1. You consumed alcohol, drugs, or some other intoxicating substance without knowing you were doing so; OR
  2. Somebody forced or tricked you into consuming an intoxicating substance.10

In addition, some California judges will also require the jury to find that you became involuntarily intoxicated through no fault of your own.11

The classic instances of involuntary intoxication might be when someone drinks a punch they believe to be nonalcoholic but that is actually spiked with liquor, or when someone eats brownies not knowing they are laced with marijuana.

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Here are some more complicated examples of involuntary intoxication drawn from real cases:

  • While at a family reunion, Walt drinks some alcoholic punch. Walt and most of the other guests don't know that the punch has been spiked with the drug PCP. Later Walt begins acting crazy and commandeers several people's cars, claiming that he's a CIA agent and needs to save the president's life.

    Walt is not guilty because he was involuntarily intoxicated-he consumed the powerful drug PCP without knowing he was doing so. This is true even though he knew he was consuming alcohol.12

  • James goes over to his friend's house for beer. His friend puts the drug LSD in James's beer without telling him. Under the influence of the LSD, James gets into a fight with a bouncer at a bar and ends up shooting him. Like Walt, he may be able to beat the charges because he was under the influence of a drug he never intended to consume (even though he did intend to drink alcohol).13

And here's an example drawn from fiction:

In the 2009 movie The Hangover, four friends do shots of the alcohol J�germeister in Las Vegas. Unbeknownst to three of them, the other one has spiked the shots with what he believes to be Ecstasy pills (it turns out they are actually "roofies"). The three friends who did not know about the drugs can probably beat criminal charges for any acts they commit under the influence of the roofies...because of the involuntary intoxication defense.

As the above examples show, California courts allow the legal defense of involuntary intoxication when people thought they were just consuming alcohol but actually ended up consuming illegal drugs.

Oddly enough, though, courts do NOT allow you to use the involuntary intoxication defense if you thought you were consuming one illegal drug-like marijuana-but in fact you were consuming another.

In one case, the defendant had smoked a marijuana joint that he did not know had been laced with PCP. But the court said that he could not claim the defense of involuntary intoxication even though he didn't know he was taking PCP. The court's reasoning was that illegal "street drugs" are frequently contaminated with other substances...so people who consume them run the risk of actually consuming something other than what they think they're taking.14

Also, California courts do not allow the defense of involuntary intoxication to be used just because someone is an alcoholic, even though alcoholics can argue that their addiction makes it so that they have no choice but to drink.15

1.3. Burden of proof

How much evidence does a criminal defendant need to introduce to show that he was involuntarily intoxicated when he committed a crime?

You do need to produce some evidence that you were not acting consciously because you were under the influence of drugs or alcohol involuntarily. Once you've done that, though, it's the prosecution that bears the burden of proving beyond a reasonable doubt that you were acting consciously when you committed the crime.16

2. Defense of voluntary intoxication

2.1. What is considered "voluntary" intoxication?

The vast majority of people who consume alcohol or drugs do so voluntarily, meaning they know they are consuming something that has an intoxicating effect.17

If someone commits a crime under the influence of drugs or alcohol that they consumed voluntarily, then they need to rely on the legal defense of voluntary intoxication.

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2.2. Not a complete defense

The so-called defense of voluntary intoxication is not exactly a defense at all, because it doesn't eliminate all criminal liability. Instead, evidence that someone was voluntarily intoxicated when they committed a crime makes it harder (or sometimes impossible) for the prosecution to prove certain things that they have to prove to get a guilty verdict.18

It's an established principle of criminal law that you can't be criminally liable just for doing something wrong (in most cases, anyway). The prosecution also has to prove that you had a culpable state of mind-or criminal intentions-when you committed the bad act.  19

But there are two different kinds of criminal intent. One is the "general intent" to commit a criminal act; the other is the "specific intent" to achieve some bad result through the criminal act.20

Voluntary intoxication will NOT be any help at all if you are a charged with a "general intent" crime.21

But if you are charged with a "specific intent" crime, then the jury can consider evidence that you were intoxicated when you committed the crime. This evidence may cause the jury to decide that you couldn't have had the required specific intent, and therefore to find you innocent.22

But, unlike with the involuntary intoxication defense, showing that you were voluntarily intoxicated when you committed the crime does not mean the jury will necessarily find you innocent.23

2.3. What is a "specific intent" crime?

Here's how the California Supreme Court has described the difference between a "general intent" crime and a "specific intent" crime:

"Specific and general intent have been notoriously difficult terms to define and apply and a number of text writers recommend that they be abandoned altogether. Too often the characterization of a particular crime as one of specific or general intent is determined solely by the presence or absence of words describing psychological phenomena-'intent' or 'malice,' for example-in the statutory language defining the crime. When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent. There is no real difference, however, only a linguistic one, between an intent to do an act already performed and an intent to do that same act in the future."24

Confused? You're not alone.

According to Sacramento criminal defense attorney Keith Staten 25:

"Voluntary intoxication can only help a defendant's case if he or she is accused of a specific intent crime. But the courts themselves don't really seem to know the difference between a general intent crime and a specific intent crime! In the past they've made the distinction in a confusing, ad hoc way, based mostly on whether or not they think intoxication should be a defense to a particular crime."

That said, the California courts have said that certain crimes are not specific intent crimes for purposes of the voluntary intoxication defense. In other words, if you are accused of any of these crimes, the defense of voluntary intoxication will NOT help you defend yourself.

These include:

California courts have also made it clear that certain crimes ARE specific intent crimes. For these crimes, evidence of voluntary intoxication MAY help you make the case that you should be found innocent. These are:

Other crimes that will almost certainly be treated as specific intent crimes, and thus for which voluntary intoxication may be a partial defense, include:

But, remember, just because evidence of voluntary intoxication may be helpful to you if you are charged with these crimes, it doesn't mean that you can't be found guilty. It's just a factor the jury must consider in deciding whether you had the necessary criminal intent.32

The distinction between general and specific intent crimes is extremely complicated. Therefore, an experienced California criminal defense attorney is absolutely essential if you are accused of committing a crime while you were voluntarily intoxicated.

2.4. Defense to murder charges

Involuntary intoxication can be relevant when a defendant is charged with the California crime of murder (Penal Code 187).33

This is because murder is defined as the killing of another person with "malice aforethought."34 There are two types of malice: express and implied.  Express malice means you specifically intended to kill someone.  Malice is implied when:

(a) The killing resulted from an intentional act;

(b) The natural consequences of the act are dangerous to human life; and

(c) The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.35

If a defendant is charged with murder under an express malice theory-that is, the theory that they specifically intended to kill someone-then they can introduce evidence of voluntary intoxication.  36

This makes sense: if a defendant was drunk or high when they killed someone, then there is a better chance that they were not capable of forming the specific intent to kill. Evidence of voluntary intoxication won't help an accused murderer escape guilt altogether...but it can help reduce a charge of murder to the lesser charge of voluntary manslaughter.37

Here's an example of the effect of voluntary intoxication on express malice murder:

On his ex-girlfriend's wedding day, Lyle consumes a large amount of alcohol and cocaine. He then goes to the park where his ex-girlfriend is getting married and shoots her to death.

If Lyle is charged with murder, it will be under an express malice theory, since it certainly looks like he intended to kill his ex-girlfriend. This means that he may introduce evidence that he was intoxicated when he killed her.

The jury may take this evidence into account in determining whether Lyle had the state of mind required for a murder conviction. They may choose to find him guilty of voluntary manslaughter instead.

However, if a defendant is charged with murder under an implied malice theory-that is, the theory that they didn't specifically intend to kill someone but instead just acted with a conscious disregard for human life-then the jury may NOT consider evidence that the defendant was voluntarily intoxicated.38

Here's an example of the effect of voluntary intoxication on implied malice murder:

After getting laid off from his job, Bruce goes to a bar. He drinks a huge amount and does several lines of cocaine in the bathroom. He then pulls out a gun and fires randomly into the air. One bullet bounces off the ceiling and kills another patron.

If Bruce is charged with murder, it will be under an implied malice theory, since it doesn't look like he intended to kill anyone but he did knowingly engage in an act that was very dangerous to human life. This means that evidence that he was under the influence of drugs and alcohol can NOT be considered by the jury when they decide whether to find him guilty of murder.
3. Related legal defenses

3.1. Unconsciousness

As we discussed above, the legal defense of involuntary intoxication is a subset of the legal defense of unconsciousness. Unconsciousness is a complete defense to criminal charges.39

You can be considered legally "unconscious" even if you are able to move around.40 In addition to people involuntarily under the influence of drugs or alcohol, the unconsciousness defense applies to people who are unconscious for other reasons. This includes people who commit crimes while they are:

  • Sleepwalking;
  • Experiencing a blackout; or
  • Experiencing an epileptic seizure.41

3.2. Mistake of fact

The legal defense of mistake of fact means that a defendant is usually not guilty of a crime if he or she made a reasonable mistake about certain key facts, and therefore did not have the required criminal intent.42

The mistake of fact defense is connected with the involuntary intoxication defense. Normally, for the mistake of fact defense to apply, the defendant's mistake must have been reasonable.43 But an unreasonable mistake can be a valid legal defense too...IF the defendant made the unreasonable mistake only because he was involuntarily intoxicated.

To illustrate the point, let's return to an example we discussed above:

While at a family reunion, Walt drinks some alcoholic punch. Walt and most of the other guests don't know that the punch has been spiked with the drug PCP. Later Walt begins acting crazy and commandeers several people's cars, claiming that he's a CIA agent and needs to save the president's life.

Walt is not guilty, because of the mistake of fact defense. He mistakenly believed that he needed to take other people's cars in order to save the president's life. This would not have been a reasonable mistake under normal circumstances. But Walt was under the influence of PCP through no fault of his own. Given his condition, his mistaken belief WAS reasonable.44

3.3. Insanity

The insanity defense is well-known in popular culture. If a defendant was legally insane when he or she committed a crime, he or she will be found not guilty.45

A defendant is legally insane if he/she has a mental disease or defect that makes it so that he/she either:

  1. Doesn't understand the nature of his/her criminal act; OR
  2. Can't distinguish right from wrong.46

It might sound like someone who is under the influence of drugs or alcohol could fit this description. But in fact intoxication is legally distinct from insanity. You cannot be found legally insane just because you were under the influence of drugs or alcohol.47

Addiction to drugs or alcohol also does not count as legal insanity...even if the defendant suffers from brain damage or a permanent mental disease as a result of his or her past use of drugs or alcohol.48

Call us for help...
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If you or loved one is in need of help with using intoxication as a legal defense and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, we have law offices located in Reno and Las Vegas. For information relating to Nevada's legal defenses, we invite you to contact a Nevada criminal defense attorney at one of our local Nevada law offices.49

Legal References:

1 Office of Justice Programs, Bureau of Justice Statistics, "Alcohol and Crime: Data From 2002 to 2008".

2 Office of Justice Programs, Bureau of Justice Statistics, "Drugs and Crime Facts".

3 People v. Heffington, (1973) 32 Cal.App.3d 1, 8. ("Unconsciousness due to involuntary intoxication is recognized as a complete defense to a criminal charge.")

4 Penal Code 22 PC - Voluntary intoxication as excuse for crime; admissibility of evidence. ("Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.")

5 Same.

6 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, Sacramento, and several nearby cities.

7Penal Code 26 PC. ("All persons are capable of committing crimes except those belonging to the following classes: . . . Four - Persons who committed the act charged without being conscious thereof.")

See also Judicial Council of California Criminal Jury Instructions ("CALCRIM") 3425 - Unconsciousness: Related Issues.  ("Unconsciousness due to involuntary intoxication is a complete defense to a criminal charge under Penal Code section 26, subdivision (4).")

8 Penal Code 26(4) PC.

9 CALCRIM 3425 - Unconsciousness: Related Issues.  ("Unconsciousness due to involuntary intoxication is a complete defense to a criminal charge under Penal Code section 26, subdivision (4).")

10 CALCRIM 3427 - Involuntary Intoxication. ("A person is involuntarily intoxicated if he or she unknowingly ingested some intoxicating liquor, drug, or other substance, or if his or her intoxication is caused by the force, duress, fraud, or trickery of someone else, for whatever purpose[, without any fault on the part of the intoxicated person].")

11 Same.  See also CALCRIM 3427 - Bench Notes: Instructional Duty. ("It is unclear when the concept of 'fault' would apply if the person has no knowledge of the presence of the intoxicating substance. The committee has included the language in brackets for the court to use at its discretion.")

12 People v. Scott, (1983) 146 Cal.App.3d 823, 826-27, 831-33. ("Although defendant's mistake of fact was undoubtedly irrational, it was also undoubtedly reasonable under the circumstances, because the circumstances include that the mistake emanated from a delusion caused by defendant's involuntary intoxication resulting from unknowingly ingesting some unspecified hallucinogenic substance. We conclude therefore that even if the evidence is sufficient to support the trial court's finding that defendant intended to temporarily deprive the owners of possession of their vehicles, defendant's actions clearly fall within the purview of Penal Code section 26, subdivision Three, and were therefore not criminal.")

13 People v. Cruz, (1978) 83 Cal.App.3d 308, 314, 330-31.

14 People v. Velez, (1985) 175 Cal.App.3d 785, 795. ("Thus, unlike alcohol, unlawful street drugs are frequently not the substance they purport to be or are contaminated with other substances not apparent to the naked eye.")

15 People v. Wyatt, (1972) 22 Cal.App.3d 671, 678.

16 People v. Cruz, (1978) 83 Cal.App.3d 308, 330-31. ("The prosecution has the burden of proving beyond a reasonable doubt that a defendant was conscious during the commission of the crime. The prosecution is aided by a presumption to the effect that a defendant who acts as if he is conscious is presumed to be conscious. This presumption is rebuttable. It does not remove from the prosecution the burden of proving a defendant's consciousness beyond a reasonable doubt; it places upon a defendant, when evidence of conscious acts are introduced, merely the duty of going forward with the evidence and of raising a reasonable doubt.") (internal quotation marks omitted)

17 CALCRIM 3426 - Voluntary intoxication. ("A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect.")

18Penal Code 22 PC - Voluntary intoxication as excuse for crime; admissibility of evidence. ("(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. (b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.")

19 See, e.g., Penal Code 20 PC- Crime; unity of act and intent, or criminal negligence. ("TO CONSTITUTE CRIME THERE MUST BE UNITY OF ACT AND INTENT. In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.")

20 People v. Hood, (1969) 1 C.3d 444, 456-57. ("When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.")

21 Penal Code 22 PC - Voluntary intoxication as excuse for crime; admissibility of evidence. ("("(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act.")

22 CALCRIM 3426 - Voluntary Intoxication. ("You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted [or failed to do an act] with <insert specific intent or mental state required, e.g., "the intent to permanently deprive the owner of his or her property" or "knowledge that ... " or "the intent to do the act required" >.")

23 People v. Mendoza, (1998) 18 Cal.4th 1114, 1133-34. ("We also stress that although evidence of intoxication is admissible on the question of aider and abettor liability, a jury can still find an intoxicated person guilty as an aider and abettor. Evidence of intoxication, while legally relevant, may be factually unconvincing.")

24 People v. Hood, (1969) 1 C.3d 444, 456-57.

25 Sacramento criminal defense lawyer Keith Staten is a former deputy public defender and lawyer for the California DMV.  He has tried over 70 cases to verdict, including countless California DMV hearings, hard-core gang cases, domestic battery cases, and other felony and misdemeanor matters. He practices in the Sacramento County courts.

26 People v. Atkins, (2001) 25 Cal.4th 76, 84. ("We agree with the People that arson requires only a general criminal intent and that the specific intent to set fire to or burn or cause to be burned the relevant structure or forest land is not an element of arson.")

27 People v. Hood (1969), 1 Cal.3d 444, 457-58. ("An assault, however, is equally well characterized as a general intent crime under the definition of general intent as an intent merely to do a violent act. Therefore, whatever reality the distinction between specific and general intent may have in other contexts, the difference is chimerical in the case of assault with a deadly weapon or simple assault.")

28 Same.

29 People v. Mendoza, (1998) 18 Cal.4th 1114, 1129. ("The intent requirement for an aider and abettor fits within the Hood definition of specific intent. To be culpable, an aider and abettor must intend not only the act of encouraging and facilitating but also the additional criminal act the perpetrator commits. The latter act is not made less criminal by reason of intoxication. In our hypothetical, if the alleged aider and abettor intended only the act of handing a bat to another person, and did not intend to do a further act or achieve a future consequence, that person would not intend that any criminal act at all be committed. Aiding and abetting liability attaches only with the intent that the direct perpetrator commit a further, criminal, act in order to achieve the future consequence of that act.") (internal citations and quotation marks omitted)

30 People v. Reyes, (1997) 52 Cal.App.4th 975, 984. ("Applying the above principles to this case, we conclude Dr. Murphy's testimony was admissible. [P]roof of the crime of receiving stolen property requires establishing that the property in question was stolen, that the defendant was in possession of it, and that the defendant knew the property to be stolen.")

31 1 Witkin, California Criminal Law 3d (2000) Elements, § 5.

32 People v. Mendoza, (1998) 18 Cal.4th 1114, 1133-34. ("We also stress that although evidence of intoxication is admissible on the question of aider and abettor liability, a jury can still find an intoxicated person guilty as an aider and abettor. Evidence of intoxication, while legally relevant, may be factually unconvincing.")

33 Penal Code 22 PC - Voluntary intoxication as an excuse for crime; admissibility of evidence. ("(b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.")

34 Penal Code 187 PC -  Murder defined. ("(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.")

35 California Jury Instructions, Criminal - CALJIC 8.11 - "Malice Aforethought". (""Malice" may be either express or implied. [Malice is express when there is manifested an intention unlawfully to kill a human being.] [Malice is implied when: 1 The killing resulted from an intentional act; 2 The natural consequences of the act are dangerous to human life; and 3 The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.] [When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought.] The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed. The word "aforethought" does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act.")

See also California Penal Code 188 PC -- Malice, express malice, and implied malice defined. ("Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice.")

36 Penal Code 22 PC - Voluntary intoxication as an excuse for crime; admissibility of evidence. ("(b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.")

37 People v. Ochoa, (1998) 19 Cal.4th 353, 423. ("[I]f the intoxication is voluntarily induced, it can never excuse homicide. Thus, the requisite element of criminal negligence is deemed to exist irrespective of unconsciousness, and a defendant stands guilty of involuntary manslaughter if he voluntarily procured his own intoxication."]

38 People v. Martin, (2000) 78 Cal.App.4th 1107, 1114-1115. ("[E]vidence of voluntary intoxication is no longer admissible on the issue of implied malice aforethought.")

39 Penal Code 26 PC. ("All persons are capable of committing crimes except those belonging to the following classes: . . . Four - Persons who committed the act charged without being conscious thereof.")

40 CALCRIM 3425 - Unconsciousness. ("The defendant is not guilty of <insert crime[s] > if (he/she) acted while legally unconscious. Someone is legally unconscious when he or she is not conscious of his or her actions. [Someone may be unconscious even though able to move.]")

41 Same. ("Unconsciousness may be caused by (a blackout[,]/ [or] an epileptic seizure[,]/ [or] involuntary intoxication[,]/ [or] sleepwalking[,]/ or <insert a similar condition>).")

42 CALCRIM 3406 - Mistake of Fact. ("The defendant is not guilty of <insert crime[s] > if (he/she) did not have the intent or mental state required to commit the crime because (he/she) [reasonably] did not know a fact or [reasonably and] mistakenly believed a fact.")

43 Same.

44 People v. Scott, (1983) 146 Cal.App.3d 823, 826-27, 831-33. ("Although defendant's mistake of fact was undoubtedly irrational, it was also undoubtedly reasonable under the circumstances, because the circumstances include that the mistake emanated from a delusion caused by defendant's involuntary intoxication resulting from unknowingly ingesting some unspecified hallucinogenic substance. We conclude therefore that even if the evidence is sufficient to support the trial court's finding that defendant intended to temporarily deprive the owners of possession of their vehicles, defendant's actions clearly fall within the purview of Penal Code section 26, subdivision Three, and were therefore not criminal.")

45 California Penal Code 25 PC -- Insanity as a California legal defense. ("... (b) In any criminal proceeding, including any juvenile court proceeding, in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.")

46 CALCRIM 3450 - Insanity: Determination, Effect of Verdict. ("The defendant was legally insane if: 1 When (he/she) committed the crime[s], (he/she) had a mental disease or defect; AND 2 Because of that disease or defect, (he/she) was incapable of knowing or understanding the nature and quality of (his/her) act or was incapable of knowing or understanding that (his/her) act was morally or legally wrong.")

47 Same. ("[Special rules apply to an insanity defense involving drugs or alcohol. Addiction to or abuse of drugs or intoxicants, by itself, does not qualify as legal insanity. This is true even if the intoxicants cause organic brain damage or a settled mental disease or defect that lasts after the immediate effects of the intoxicants have worn off. Likewise, a temporary mental condition caused by the recent use of drugs or intoxicants is not legal insanity.]")

48 Penal Code PC 25.5 - Basis of defense; plea of not guilty by reason of insanity. ("In any criminal proceeding in which a plea of not guilty by reason of insanity is entered, this defense shall not be found by the trier of fact solely on the basis of a personality or adjustment disorder, a seizure disorder, or an addiction to, or abuse of, intoxicating substances. This section shall apply only to persons who utilize this defense on or after the operative date of the section.")

See also CALCRIM 3540. ("Addiction to or abuse of drugs or intoxicants, by itself, does not qualify as legal insanity. This is true even if the intoxicants cause organic brain damage or a settled mental disease or defect that lasts after the immediate effects of the intoxicants have worn off.")

49 Please feel free to contact our Nevada criminal defense attorney Michael Becker or attorney Mike Castillo for any questions relating to Nevada's criminal laws.

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