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18-1-804. Intoxication.

Statute text

(1) Intoxication of the accused is not a defense to a criminal charge, except as provided in subsection (3) of this section, but in any prosecution for an offense, evidence of intoxication of the defendant may be offered by the defendant when it is relevant to negative the existence of a specific intent if such intent is an element of the crime charged.

(2) Intoxication does not, in itself, constitute mental disease or defect within the meaning of section 18-1-802.

(3) A person is not criminally responsible for his conduct if, by reason of intoxication that is not self-induced at the time he acts, he lacks capacity to conform his conduct to the requirements of the law.

(4) "Intoxication", as used in this section means a disturbance of mental or physical capacities resulting from the introduction of any substance into the body.

(5) "Self-induced intoxication" means intoxication caused by substances which the defendant knows or ought to know have the tendency to cause intoxication and which he knowingly introduced or allowed to be introduced into his body, unless they were introduced pursuant to medical advice or under circumstances that would afford a defense to a charge of crime.


Source: L. 71: R&RE, p. 412, 1. C.R.S. 1963: 40-1-904.





Law reviews. For article, "Mens Rea and the Colorado Criminal Code", see 52 U. Colo. L. Rev. 167 (1981).

Annotator's note. Since 18-1-804 is similar to former 40-1-9, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

Subsection (1) is not an unconstitutional burden on a defendant's due process rights. Subsection (1) does not reduce the prosecution's burden to prove every element of the offense beyond a reasonable doubt and does not prevent a defendant from presenting a complete defense; therefore, it does not violate the defendant's due process rights. People v. Stone, 2020 COA 23, 471 P.3d 1148.

This section is declaratory of the common law. Brennan v. People, 37 Colo. 256, 86 P. 79 (1906); Watkins v. People, 158 Colo. 485, 408 P.2d 425 (1965).

Involuntary intoxication and insanity are legally separate and distinct defenses with significantly distinct consequences. People v. Garcia, 113 P.3d 775 (Colo. 2005).

The accountability of one who becomes drunk voluntarily is defined by this section. Watkins v. People, 158 Colo. 485, 408 P.2d 425 (1965).

Intoxication is not an excuse for crime. Brennan v. People, 37 Colo. 256, 86 P. 79 (1906); Martinez v. People, 172 Colo. 82, 470 P.2d 26 (1970); Roybal v. People, 177 Colo. 144, 493 P.2d 9 (1972).

This section provides that drunkenness will not be an excuse for any crime where only the general intent is necessary for its commission. Watkins v. People, 158 Colo. 485, 408 P.2d 425 (1965).

Impaired mental state resulting from voluntary intoxication is not a defense to a general intent crime. People v. Roark, 643 P.2d 756 (Colo. 1982).

The mental culpability requirement of both second-degree kidnapping and first-degree sexual assault is "knowingly"; therefore, they are, by statutory definition, general intent crimes and voluntary intoxication is not a defense to either crime. People v. Vigil, 43 Colo. App. 121, 602 P.2d 884 (1979).

Voluntary intoxication may serve to establish an affirmative defense to specific intent crimes. People v. Barnhart, 638 P.2d 814 (Colo. App. 1981) (disapproved of by supreme court in People v. Harlan, 8 P.3d 448 (Colo. 2000)).

Voluntary intoxication does not constitute an affirmative defense. To the extent that prior decisions indicate otherwise, they are disapproved. People v. Harlan, 8 P.3d 448 (Colo. 2000); People v. Lucas, 232 P.3d 155 (Colo. App. 2009).

A criminal defendant who maintains his or her innocence at trial is not automatically barred from seeking jury instructions for a voluntary intoxication defense. If an instruction is given in that case, there must be a rational basis for it in the evidence presented at trial. After a review of the record, there was no rational basis in the evidence for the voluntary intoxication instruction. Brown v. People, 239 P.3d 764 (Colo. 2010).

Claim of innocence does not disentitle defendant to voluntary intoxication offense. The instruction, however, must be supported by evidence at trial. There was no error in failing to instruct the jury on voluntary intoxication because there was no evidence that defendant was intoxicated while committing the crime. Defendant's testimony that he passed out drunk would have made it physically impossible for him to commit the offense. People v. Brown, 218 P.3d 733 (Colo. App. 2009), aff'd, 239 P.3d 764 (Colo. 2010).

Subsection (1) is an evidentiary rule permitting the introduction of evidence of voluntary intoxication to negate the requisite specific intent of the charged offense. People v. Harlan, 8 P.3d 448 (Colo. 2000); People v. Lucas, 232 P.3d 155 (Colo. App. 2009).

"After deliberation" is part of the culpable mental state required by first degree murder and may be negated by evidence of voluntary intoxication. People v. Miller, 113 P.3d 743 (Colo. 2005).

Use of term "negate" instead of "negative" in jury instruction concerning voluntary intoxication and specific intent not erroneous. Although "negative" is the term contained in subsection (1), the two terms may be used interchangeably in this context. People v. Souva, 141 P.3d 845 (Colo. App. 2005).

Section applicable in analysis of "voluntary act". This section applies not only to the mental state of a defendant in general intent crimes but is also applicable in the analysis of a "voluntary act", as that phrase is used in the definition of criminal liability in 18-1-502. People v. Huskey, 624 P.2d 899 (Colo. App. 1980).

Intoxication does not negate culpability element of "knowingly". Evidence of self-induced intoxication is not admissible to negate the culpability element of "knowingly". People v. Aragon, 653 P.2d 715 (Colo. 1982); People v. Breland, 728 P.2d 763 (Colo. App. 1986).

Trial court did not err in instructing the jury that it should not consider evidence of intoxication in determining whether the prosecution had proved the mental state of knowingly beyond a reasonable doubt. People v. Vanrees, 80 P.3d 840 (Colo. App. 2003), rev'd on other grounds, 125 P.3d 403 (Colo. 2005).

If evidence of intoxication is presented at trial and the jury is given an instruction on the effect of the evidence, the instruction must incorporate the complete provision in subsection (1) not just the first clause. People v. Vigil, 104 P.3d 258 (Colo. App. 2004).

Consumption of heroin by an addict causes self-induced, not involuntary, intoxication. Tacorante v. People, 624 P.2d 1324 (Colo. 1981).

Voluntary intoxication sufficient to support general intent for crime. One who voluntarily drinks himself into unconsciousness intends whatever the foreseeable consequences or inevitable results of such intoxication are, and that intent is sufficient to supply general intent for second degree murder. Watkins v. People, 158 Colo. 485, 408 P.2d 425 (1965).

Alcohol idiosyncratic intoxication not a defense to general intent crime because, although the result of the ingestion of alcohol may be more severe, the ingestion is still voluntary. People v. Matthews, 717 P.2d 970 (Colo. App. 1985).

"Settled insanity" arising from the long-term use of intoxicants cannot be maintained as a defense. The settled insanity doctrine conflicts with the state's statutory scheme regarding insanity and self-induced intoxication. Bieber v. People, 856 P.2d 811 (Colo. 1993), cert. denied, 510 U.S. 1054, 114 S. Ct. 716, 126 L. Ed. 2d 680 (1994).

Voluntary intoxication not to be considered as a defense or mitigating factor to the crime of extreme indifference murder. Voluntary intoxication only a defense to specific intent crimes such as homicide with deliberation. Extreme indifference murder requires only that defendant have the general intent to act "knowingly". People v. Zekany, 833 P.2d 774 (Colo. App. 1991); People v. Harlan, 8 P.3d 448 (Colo. 2000).

Or to any other crime having as an element the mental state of "knowingly" or "recklessly". People v. Quintana, 996 P.2d 146 (Colo. App. 1998).

It is admissible to show absence of specific intent. When a particular intent forms the gist of the offense, as distinguished from the intent necessarily entering into every crime, and is made to depend on the state and condition of the mind of the accused at the time with reference to acts committed, intoxication, as a fact affecting the control of the mind, is proper for the consideration of the jury in determining whether the accused was capable of entertaining the positive and particular intent requisite to make out the offense. Brennan v. People, 37 Colo. 256, 86 P. 79 (1906); Martinez v. People, 172 Colo. 82, 470 P.2d 26 (1970).

Voluntary drunkenness is no legal excuse for a crime perpetrated under the influence of intoxicating liquor unless its effect is to destroy the ability of the accused to form a specific intent, the existence of which is an element of the offense charged. Dolan v. People, 168 Colo. 19, 449 P.2d 828 (1969).

Drunkenness can be considered only as bearing upon the ability of a defendant to form the intent necessary to commit the crime charged. Roybal v. People, 177 Colo. 144, 493 P.2d 9 (1972).

The actor's intent is an element of the offense of escape and defendant is entitled to introduce evidence to the effect that he was too drunk to form the state of mind required for the commission of the offense. Gallegos v. People, 159 Colo. 379, 411 P.2d 956 (1966).

Under subsection (1), a defendant's voluntary intoxication may be evidence of his inability to entertain the specific intent required for conviction of second-degree murder. People v. Cornelison, 192 Colo. 337, 559 P.2d 1102 (1977); People v. Sepeda, 196 Colo. 13, 581 P.2d 723 (1978).

And in homicide cases to show lesser offense. For the purposes of the defense in a trial for homicide, insanity, intoxication, or any other fact which tends to prove that the prisoner was incapable of deliberation was competent evidence for the jury to weigh. Intoxication is admissible in such cases, not as an excuse for crime, not in mitigation of punishment, but as tending to show that the lesser and not the greater offense was in fact committed. Brennan v. People, 37 Colo. 256, 86 P. 79 (1906).

It is only because of the specific intent required for first degree murder that a voluntary drunkenness is an excuse even for that crime. Watkins v. People, 158 Colo. 485, 408 P.2d 425 (1965).

Limitation on use of defense of voluntary intoxication. The policies adopted by the general assembly in refusing to permit a defense of voluntary intoxication in general intent crimes, defined in the criminal code, apply with equal force to general intent narcotics violation crimes, under part 3 of article 22, title 12. People v. Harfmann, 633 P.2d 500 (Colo. App. 1981).

Diminished responsibility due to self-induced intoxication is not a defense to murder in the second degree. People v. Vasquez, 148 P.3d 326 (Colo. App. 2006).

Self-induced intoxication involves moral culpability. Self-induced intoxication, by its very nature, involves a degree of moral culpability. The moral blameworthiness lies in the voluntary impairment of one's mental faculties with knowledge that the resulting condition is a source of potential danger to others. Hendershott v. People, 653 P.2d 385 (Colo. 1982), cert. denied, 459 U.S. 1225, 103 S. Ct. 1232, 75 L. Ed. 2d 466 (1983).

But involuntary intoxication does not. Involuntary intoxication, in contrast, is without moral culpability and, for this reason, is a complete defense to all crimes. Hendershott v. People, 653 P.2d 385 (Colo. 1982), cert. denied, 459 U.S. 1225, 103 S. Ct. 1232, 75 L. Ed. 2d 466 (1983); People v. Turner, 680 P.2d 1290 (Colo. App. 1983).

Involuntary intoxication as an affirmative defense. Where the defendant presented evidence that he was unaware of the effect of ingesting excessive doses of a prescribed drug, it is reversible error not to submit that issue to the jury. People v. Turner, 680 P.2d 1290 (Colo. App. 1983).

A person is involuntarily intoxicated when he or she takes a substance pursuant to medical advice and does not know that he or she is ingesting an intoxicant or ingests a substance which is not known to be an intoxicating substance. People v. Low, 732 P.2d 622 (Colo. 1987); People v. Garcia, 113 P.3d 775 (Colo. 2005).

The medical condition of insulin-induced hypoglycemia may, depending on the particular facts and circumstances involved, constitute the affirmative defense of involuntary intoxication. People v. Garcia, 113 P.3d 775 (Colo. 2005).

Evidence held not to show excuse within terms of this section. Seiwald v. People, 66 Colo. 332, 182 P. 20 (1919); Nieto v. People, 152 Colo. 526, 383 P.2d 321 (1963).

Prosecution's involuntary intoxication instruction lessened the prosecution's burden of proof. The instruction asked whether defendant's intoxication was self-induced without clarifying that the people bore the burden of disproving involuntary intoxication beyond a reasonable doubt. The effect of the instruction was to tell the jury not to consider the people's burden of proof until after it first decided whether defendant's intoxication was self-induced. People v. Sabell, 2018 COA 85, 452 P.3d 91.

Evidence of addiction not sufficient to support a finding that defendant's drug use was involuntary, therefore defendant could not avail himself of the defense of involuntary intoxication. People v. Grenier, 200 P.3d 1062 (Colo. App. 2008).

Question for jury. Where there was evidence tending to prove drunkenness, it was for the jury to determine whether the defendant was so intoxicated as to be unable to form the deliberate intent necessary. Martinez v. People, 172 Colo. 82, 470 P.2d 26 (1970).

While intoxication may be relevant to a determination of whether the defendant did form or had the capacity to form the requisite specific intent, the issue of intoxication is one for the jury. People v. White, 191 Colo. 353, 553 P.2d 68 (1976).

Jury decision on intoxication affirmed. Where the jury was properly instructed on specific intent and on defendant's affirmative defense of intoxication and where evidence is sufficient to support the jury's conclusion that defendant was not too intoxicated to form a specific intent to commit a crime that decision must be affirmed. People v. Barnhart, 638 P.2d 814 (Colo. App. 1981).

In order to warrant submission of the defense of involuntary intoxication to the jury, the defendant must introduce some credible evidence of involuntary intoxication. People v. Somerville, 703 P.2d 615 (Colo. App. 1985).

Requested instructions covered by given instructions. There is no error in the refusal of the trial court to give a requested instruction as to drunkenness when the law therein contained is fully covered by the instructions given. McPhee v. People, 105 Colo. 539, 100 P.2d 148 (1940), distinguishing Brennan v. People, 37 Colo. 256, 86 P. 79 (1906).

Court may be required to give instruction. Under some circumstances, a court's failure to instruct sua sponte on intoxication may result in reversible error. People v. Mattas, 645 P.2d 254 (Colo. 1982).

The district court committed reversible error in refusing to instruct the jury on defendant's affirmative defense of voluntary intoxication as allowed by this section in a prosecution of second-degree murder. People v. Cornelison, 192 Colo. 337, 559 P.2d 1102 (1977).

Trial court's failure to instruct the jury that voluntary intoxication may apply to sexual assault on a child does not constitute plain error for there is doubt whether the issue is yet settled. People v. O'Connell, 134 P.3d 460 (Colo. App. 2005).

The trial court properly instructed the jury that "any mental illness suffered by defendant is not a defense in this case". Defendant's mental illness does not support the defense of involuntary intoxication since the defense of involuntary intoxication involves a temporary condition, and bipolar is not a temporary condition. Defendant's bipolar condition would have provided evidence for an insanity defense, but defendant did not plead insanity, which requires a special pleading. Therefore, the court properly instructed the jury that mental illness was not a defense in this case. People v. Sommers, 200 P.3d 1089 (Colo. App. 2008).

The term "substance" excludes viruses as a matter of law, and, therefore, defendant is barred from using the affirmative defense of involuntary intoxication. People v. Voth, 2013 CO 61, 312 P.3d 144.

Applied in People v. Norwood, 37 Colo. App. 157, 547 P.2d 273 (1975); People v. Lundborg, 39 Colo. App. 498, 570 P.2d 1303 (1977); People v. Thompson, 197 Colo. 299, 592 P.2d 803 (1979); People v. DelGuidice, 199 Colo. 41, 606 P.2d 840 (1979); People v. Gallegos, 628 P.2d 999 (Colo. 1981); People v. Frysig 628 P.2d 1004 (Colo. 1981); People v. Brown, 632 P.2d 1025 (Colo. 1981); People v. Shaw, 646 P.2d 375 (Colo. 1982); People v. Bartowsheski, 661 P.2d 235 (Colo. 1983); People v. Rivers, 727 P.2d 394 (Colo. App. 1986); People v. Low, 732 P.2d 622 (Colo. 1987).