Colorado Jury Instructions-Criminal (COLJI-Crim) (2014)

H:34 INTOXICATION (VOLUNTARY)

The evidence presented in this case has raised the question of self-induced intoxication with respect to the offense of [insert name of specific intent offense(s)].

For that [those] offense[s], you may consider whether or not evidence of self-induced intoxication negates the existence of the element[s] of [“with intent”] [“after deliberation and with intent”] [“intentionally”].

The prosecution has the burden of proving all the elements of the crimes charged beyond a reasonable doubt. If you find the defendant was intoxicated to such a degree that he [she] did not act with the required mental state, you should find him [her] not guilty of that offense.

[However, you may not consider evidence of self-induced intoxication for purposes of deciding whether the prosecution has proved the elements of [insert name(s) of general intent offense(s)].]

COMMENT

1. See § 18-1-804(1), C.R.S. 2016.

2. See Instruction F:10 (defining “after deliberation”); Instruction F:185 (defining “intentionally,” and “with intent”); Instruction F:188 (defining “intoxication”).

3. Voluntary intoxication is not an affirmative defense. People v. Harlan, 8 P.3d 448, 470 (Colo. 2000). Rather, “the statute sets forth a rule concerning the admissibility of evidence of intoxication by the defendant to counter the prosecution’s evidence that the defendant had the requisite specific intent of the charged offense.” Id. at 470–71. Thus, the statute “absolves a defendant of liability only for a specific intent offense when the evidence of intoxication negates the existence of the specific intent.” Id. at 471.

4. An instruction informing a jury that it “may” consider evidence of voluntary intoxication in determining whether the defendant acted with specific intent is not erroneous. See People v. Lucas, 232 P.3d 155, 163 (Colo. App. 2009) (there is no requirement to instruct the jury that it “must” consider such evidence).

5. “[A] criminal defendant who maintains his innocence may receive an inconsistent jury instruction on voluntary intoxication provided there is a rational basis for the instruction in the evidentiary record.” Brown v. People, 239 P.3d 764, 770 (Colo. 2010).

6. Evidence of voluntary intoxication is admissible to counter the specific intent element of first-degree murder, which includes “after deliberation” as an element. See People v. Miller, 113 P.3d 743, 750 (Colo. 2005).

7. If there is question as to the voluntariness of the defendant’s intoxication, draft an instruction explaining that: (1) the jurors are to decide, as a threshold matter, whether the defendant’s intoxication was “self-induced” (as defined in Instruction F:330); and (2) depending on the outcome of that determination, they should then apply either this instruction, or Instruction H:35 (involuntary intoxication). See also Instruction F:391 (defining “voluntary act” as “an act performed consciously as a result of effort or determination”).

8. Although it is settled law that evidence of self-induced intoxication does not negate the mens rea of general intent crimes, it can be difficult to determine whether a particular offense is a general intent crime. See, e.g., People v. Vigil, 127 P.3d 916 (Colo. 2006) (holding, based on a review of legislative history, that sexual assault on a child is a general intent crime with a mens rea that cannot be negated by evidence of self-induced intoxication).

The final sentence, which is enclosed within brackets, curtails a jury’s consideration of evidence of the defendant’s intoxication where the defendant is also charged with general intent crimes. See People v. Vanrees, 125 P.3d 403, 410 (Colo. 2005) (trial court did not err by instructing jury, in supplemental instruction, that: “In determining whether or not the element of ‘knowingly’ has been proved beyond a reasonable doubt, you may consider any evidence, other than intoxication, presented in this case, or lack of evidence, that you believe to bear on that element.”).