§702-230 Intoxication. (1) Self-induced intoxication is prohibited as a defense to any offense, except as specifically provided in this section.
(2) Evidence of the nonself-induced or pathological intoxication of the defendant shall be admissible to prove or negative the conduct alleged or the state of mind sufficient to establish an element of the offense. Evidence of self-induced intoxication of the defendant is admissible to prove or negative conduct or to prove state of mind sufficient to establish an element of an offense. Evidence of self-induced intoxication of the defendant is not admissible to negative the state of mind sufficient to establish an element of the offense.
(3) Intoxication does not, in itself, constitute a physical or mental disease, disorder, or defect within the meaning of section 704-400.
(4) Intoxication that is:
(a) Not self-induced; or
(b) Pathological,
is a defense if by reason of the intoxication the defendant at the time of the defendant's conduct lacks substantial capacity either to appreciate its wrongfulness or to conform the defendant's conduct to the requirements of law.
(5) In this section:
"Intoxication" means a disturbance of mental or physical capacities resulting from the introduction of substances into the body.
"Pathological intoxication" means intoxication grossly excessive in degree, given the amount of the intoxicant, to which the defendant does not know the defendant is susceptible and which results from a physical abnormality of the defendant.
"Self-induced intoxication" means intoxication caused by substances which the defendant knowingly introduces into the defendant's body, the tendency of which to cause intoxication the defendant knows or ought to know, unless the defendant introduces them pursuant to medical advice or under such circumstances as would afford a defense to a charge of a penal offense. [L 1972, c 9, pt of §1; am L 1986, c 325, §2; gen ch 1993; am L 2015, c 35, §21]
Revision Note
In subsection (5), paragraph designations deleted and definitions rearranged pursuant to §23G-15.
Cross References
Physical or mental disease, disorder, or defect excluding penal responsibility, see §704-400.
COMMENTARY ON §702-230
The Code attempts to treat the issue of the defendant's intoxication at the time of the conduct alleged the same as any other evidence bearing on the defendant's conduct and state of mind.
The issue of the defendant's intoxication at the time of the conduct alleged only presents difficulty when evidence of intoxication is sought to be introduced to disprove, or raise a reasonable doubt, that the defendant had the mental culpability requisite for liability for the offense charged (or for any offense at all). There is no difficulty in affording intoxication its evidentiary significance if a defendant seeks to show that because of the defendant's intoxication the defendant could not have performed the conduct alleged, e.g., struck a deadly blow, cracked a safe, or committed sexual aggression. However, if evidence of intoxication is offered to show that the defendant did not have a requisite mental state, the question of whether it should be admitted has led to confusing, unanalytical statements to the effect that intoxication will be admitted to show lack of "specific intent" but will not be admitted to show lack of "general criminal intent." This has been called "the current mumbo-jumbo" on drunkenness.[1]
The problem with the distinction between general and specific intent is that it does not adequately focus on the factors which are to be considered and leaves to an offense-by-offense determination the question of whether drunkenness or other intoxication will be admitted to rebut the requisite mental state. The problem is compounded by the wide diversity of phrases that have been used in the law to indicate the requisite culpable mental state.
The Code follows the position taken by Judge Learned Hand and a minority of the Model Penal Code Advisory Committee that the fact of intoxication "should be admissible to prove or to disprove the physical conduct or mental states which the law otherwise makes material to the definition of the crime charged, whenever it is logically relevant."[2]
The Model Penal Code adopts this position, but only in part. The M.P.C. formulates a special rule with respect to recklessness. It equates the defendant's becoming drunk with the reckless disregard by the defendant of risks created by the defendant's subsequent conduct and thereby forecloses the issue. In the Model Penal Code, while evidence of self-induced intoxication is admissible to rebut intent or knowledge, it is not admissible to rebut recklessness.[3] Judge Hand "thought this special rule devoid of principle,"[4] others have found it "not persuasive,"[5] and even the Reporter for the Model Penal Code does not seem enthusiastically in its favor.[6]
If, as the Model Penal Code's commentary states, "awareness of the potential consequences of excessive drinking on the capacity of human beings to gauge the risks incident to their conduct is by now so dispersed in our culture," then it hardly seems necessary to postulate a special rule of equivalence between intoxication and recklessness, or, as has been suggested, create a presumption of recklessness.[7] All that is wisely required is to insure that evidence of intoxication will be admissible to either prove or rebut recklessness. This the Code does.
The Code eliminates the concept of intoxication as a defense (except when the intoxication results in this type of incapacitation under subsection (3) which can be equated with a physical or mental condition which precludes penal responsibility under chapter 704). Subsection (1) makes evidence of defendant's intoxication fully admissible and accords such evidence its full significance in proving or rebutting relevant conduct or states of mind. Thus, for example, evidence of defendant's intoxication could be introduced to prove or negative recklessness if that state of mind is relevant.
Subsection (2) makes it clear that intoxication per se is not to be treated as a physical or mental disease, disorder, or defect which precludes penal responsibility. However, it should be noted that intoxication, under some circumstances, may be a symptom of a disease, disorder, or defect which would exclude responsibility.
Subsection (3) provides that intoxication which is not self-induced or is pathological will constitute an excusing condition if it results in the same type of incapacitation to appreciate the wrongfulness of conduct or to control conduct that precludes responsibility. Mere alterations in personality will not suffice.
The phrase "pathological intoxication" is defined and employed "to provide a defense in a few, extremely rare, cases in which an intoxicating substance is knowingly taken into the body and, because of a bodily abnormality, intoxication of an extreme and unusual [and unforeseen] degree results."[8]
The definition of "intoxication" in subsection (4)(a) is intended not to be limited to alcohol but to include drugs and other intoxicants. Narcotic drugs do not generally deteriorate the mental processes of an addict.[9] A narcotic addict who resorts to crime to obtain funds to support the addict's habit will in most instances be held accountable for the addict's conduct. It is only when the intoxicant prevents the requisite conduct or state of mind that it constitutes an excusing condition.
Hawaii has not, in a reported case, dealt with the problem of intoxication as it relates to the mental state required to establish the elements of a crime. H.R.S. §703-4 (as codified prior to this Code) provided that if a "person voluntarily or heedlessly induce[d]... mental derangement by intoxication" the person would not be held irresponsible because of such intoxication. Dictum in one case has suggested that "real insanity" resulting from excessive drinking would afford a defense,[10] however, this seems inconsistent with more recent cases which have limited a defense based on mental disease to pathological conditions of the brain.[11]
SUPPLEMENTAL COMMENTARY ON §702-230
Act 325, Session Laws 1986, prohibits a defendant who willingly becomes intoxicated and then commits a crime from using that self-induced intoxication as a defense. The use of such intoxication remains permissible for the limited purposes of proving or negating conduct or proving state of mind sufficient to establish an element of an offense. House Conference Committee Report No. 36-86, Senate Conference Committee Report No. 30-86.
Act 35, Session Laws 2015, amended subsection (4) by making technical nonsubstantive amendments.
Case Notes
Instruction on intoxication discussed. 60 H. 17, 586 P.2d 1028 (1978).
Voluntary intoxication is not a constitutionally protected defense to criminal conduct; legislature was entitled to exclude evidence of voluntary intoxication to negate state of mind. 72 H. 246, 813 P.2d 1384 (1991).
Jury instruction, derived from this section, that self-induced intoxication could not be used to negate state of mind sufficient to establish the mens rea element of the offense, constitutional. 88 H. 1, 960 P.2d 729 (1998).
Defendant's drug-induced mental illness was not a defense to second degree murder under §707-701.5(1) as adoption of such a rule would be contrary to the statutory scheme and legislative intent of §704-400 and this section. 93 H. 224, 999 P.2d 230 (2000).
Cited: 62 H. 17, 608 P.2d 408 (1980).
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§702-230 Commentary:
1. Wechsler, Foreword - Symposium on the Model Penal Code, 63 Colum. L. Rev. 589, 591 (1963).
2. M.P.C., Tentative Draft No. 9, comments at 7-8 (1959).
3. M.P.C. 2.08(2). See M.P.C., Tentative Draft No. 9, comments at 8-9 (1959).
4. Wechsler, op. cit. at 591.
5. Packer, The Model Penal Code and Beyond, 63 Colum. L. Rev. 594, 600 (1963).
6. Wechsler, op. cit. at 591.
7. Packer, op. cit. at 600-601.
8. M.P.C., Tentative Draft No. 9, comments at 11-12 (1959).
9. American Medical Association Council on Mental Health (A.M.A.), Report on Narcotic Addiction 24 (1957), cited and quoted in M.P.C., Tentative Draft No. 9, comments at 12-13 (1959).
10. In re the "Mary Belle Roberts," 3 Haw. 823 (1877).
11. Territory v. Alcosiba, 36 Haw. 231 (1942); State v. Foster, 44 Haw. 403, 354 P.2d 960 (1960).
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