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Issues In NY Criminal Law--Vol. 4, #9©

Issue: Intoxication as a defense

"Then there's the tricky and dubious defense of intoxication. Personally I've never seen it succeed." Robert Traver, Anatomy of a Murder

The Penal Law provision on intoxication is a curious one. Section 15.25 states: "Intoxication is not, as such, a defense to a criminal charge; but in any prosecution for an offense, evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negative an element of the crime charged." Handling a Criminal Case in New York, § 15:81. Intoxication evidence may be introduced where specific intent is an element of the crime. People v Jiminez, 73 AD2d 533, 422 NYS2d 414 (1st Dept 1979). But it cannot "negative" the element of recklessness. Penal Law § 15.10(3); People v Colonna, 147 AD2d 582, 537 NYS2d 877 (2d Dept 1989). Nor does it apply to a general intent crime. People v DiPaola, 143 AD2d 487, 532 NYS2d 606 (3d Dept 1988).

With intoxication, the issue is not whether the defendant was drunk, nor whether it is voluntary; rather, the issue is whether the degree of intoxication was of such a character that it destroyed the power to form the specific intent required to commit the crime. People v Leary, 64 AD2d 825, 407 NYS2d 313 (4th Dept 1978); People v Piscitelli, 156 AD2d 596, 549 NYS2d 104 (2d Dept 1989). Intoxication applies to drugs as well as alcohol. People v Parames, 114 Misc2d 503, 451 NYS2d 1015 (Sup Ct 1982); People v Nater, 56 AD2d 664, 392 NYS2d 303 (3d Dept 1977).

When a defendant introduces sufficient evidence of alcohol consumption, the court should charge the jury on the issue. CJI 9.46; People v Perry, 61 NY2d 849, 473 NYS2d 966 (1984); People v Dawson, 173 AD2d 262, 569 NYS2d 659 (1st Dept 1991). Whether the jury accept it is another matter. Where intoxication is at issue, the defendant should be made aware of the Penal Law provision. A defendant who pleads guilty should be aware that the potential defense is being waived. People v Sabari, 280 AD2d 942, 720 NYS2d 864 (4th Dept 2001); Handling §§ 15:85, 17:31. One risk to introducing intoxication evidence at trial: the prosecutor's Sandoval inquiry may be expanded. People v Dowd, 115 AD2d 557, 496 NYS2d 79 (2d Dept 1985); Handling § 15:86.

"Tight compression of language does not insure clarity and simplicity. The draftsman should condense his language only so far as it helps rather than hinders understanding. Sometimes the longer statement is the simplest." Reed Dickerson, The Fundamentals of Legal Drafting


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