West Virginia Homicide Jury Instructions Project Professor James R. Elkins & Students at the West Virginia University College of Law [Spring][2006]



Voluntary Intoxication

Standard Jury Instruction: The Court instructs the jury that although voluntary intoxication or drunkenness will never provide a legal excuse for the commission of a crime, the fact that a person may have been (grossly) intoxicated at the time of the commission of a crime, may negate the existence of the intent of [_________________], which is an element of the offense of [_________________________]. The evidence that the defendant acted [or failed to act] while in a state of gross intoxication may be considered in determining whether or not the defendant acted [or failed to act] with the intent of [__________________].

If the evidence in this case leaves you with a reasonable doubt that the accused was capable of forming this specific intent to commit the crime charged because of gross intoxication, then you should acquit the Defendant of the offense of __________________________________ and deliberate on the lesser included offense of ________________________________.

Proposed Jury Instruction: Voluntary intoxication does not excuse a crime. The defendant may, however, produce evidence to show that [he] [she] did not, by reason of intoxication, possess a element of intent [that is, _____________] that i s a necessary element of the crime of __________________. You may find the defendant not guilty of _____________________, and consider whether the defendant may be guilty of the lesser offense of _____________________, if the defendant can show that:

1) [he] [she] was so grossly intoxicated;

2) [he] [she] could not have formed the intent to __________________ [that is, the specific element of intent necessary to prove the occurence of the offense in question];

3) the intoxication actually prevented [him] [her] from forming the required intent; and

4) the intent required by the offense was not formed prior to the intoxication.

In determining whether or not the defendant was grossly intoxicated you may consider:

1) the amount of [alcohol][drugs][intoxicants] consumed and its effect on the defendant;

2) the amount of time between the defendant’s consumption of the [alcohol][drugs][intoxicants] and the defendant’s alleged criminal acts;

3) the defendant’s conduct as observed by others, and

4) [the results of tests administered to determine the use and quantities of] [alcohol][drugs][intoxicants] consumed.]

The use of [alcohol][drugs][intoxicants] does not excuse the commission of a criminal act if the use of [alcohol][drugs][intoxicants] merely:

1) arouses passions;

2) alters perceptions;

3) releases inhibitions; or

4) clouds reason and judgment.


1. The first sentence of the instruction is to convey to the jury the underlying theme and purpose of voluntary intoxication as a partial defense. Intoxication, as the Court repeatedly notes, cannot be used to fully excuse a crime. See e.g., State v. Vance, 285 S.E.2d 437 (W. Va. 1981); State v. Bailey, 220 S.E.2d 432 (W. Va. 1975).

2. The type of crimes (and mental states), in which a defendant may raise voluntary intoxication as a partial defense has not been fully determined. Obviously, a defendant charged with murder can use the defense. State v. Keeton, 272 S.E.2d 817 (W. Va. 1980). We have burglary and forgery cases in which the defense was used. See State v. Phillips, 93 S.E. 828 (W. Va. 1917) (burglary); State v. Fugate, 138 S.E. 318 (W. Va. 1927) (forgery). However, we do not here express an opinion as to whether voluntary intoxication can be used as a partial defense in all specific intent crimes. The Court has, in various cases, used restrictive language. E.g., in State v. Keeton, the Court noted that “as a general rule, we have held that the level of intoxication must be ‘such as to render the accused incapable of forming an intent to kill, or of acting with malice, premeditation or deliberation.’” State v. Keeton, 272 S.E.2d 817, 820-821 (W. Va. 1980) (citing State v. Davis, 43 S.E. 99 (W. Va. 1902) (emphasis added)). From this “general rule,” stated over 100 years ago and cited in 1980 without further elaboration, a defendant can argue that his voluntary intoxication prevented his being able to premeditate and deliberate, he may further argue that he was so intoxicated that he did not act with malice, or form an intent to kill and be found guilty of only involuntary manslaughter. This was the result in State v. Brant, 252 S.E.2d 901 (W. Va. 1979); the Court comforts itself by stating that Brant “consisted of a peculiar set of facts that will probably never be repeated; therefore, the opinion is of little general precedential value.” Keeton, 272 S.E.2d at 821. It is unclear how the Court, in Brant, was trying to limit the use of voluntary intoxication as a defense. The Court quoted a syllabus point that explicitly says a defendant can negate all of the elements of murder, i.e. intent to kill, malice, premeditation, and deliberation, and then, goes on in the next paragraph say that a defendant cannot argue all of them at the same time. If the Court has it in mind to limit the use of voluntary intoxication to negate the specific elements of premeditation and deliberation only, thus allowing voluntary intoxication to be used only to mitigate first degree murder to second degree murder, it has not to date done so. And, to do so would require the Court to explain the rationale and logic of the restrictive use of voluntary intoxication.

3. The issues raised here, about the use of voluntary intoxication in homicide cases, extend to the use of diminished capacity in still other circumstances. It would, seemingly, be inequitable to allow evidence of diminished capacity due to voluntary intoxication in homicide cases, yet deny such evidence where an organic brain injury or other brain injury or disease is involved. This point was observed by Justice Miller in State v. Simmons, 309 S.E.2d 89, 98 n.18 (W. Va. 1983):

Neither logic nor justice can tolerate a jurisprudence that defines the elements of an offense as requiring a mental state such that one defendant can properly argue that his voluntary drunkenness removed his capacity to form the specific intent but another defendant is inhibited from a submission of his contention that an abnormal mental condition, for which he was in no way responsible, negated his capacity to form a particular specific intent, even though the condition did not exonerate him from all criminal responsibility. (quoting United States v. Brawner, 153 U.S. App. D.C. 1, 471 F.2d 969, 999 (D.C. Cir. 1972) (en banc)).

Relevant Cases:

1. The level of intoxication required, "gross intoxication," is discussed in: State v. Keeton, 166 W.Va. 77, 83, 272 S.E. 2d 817, 820-821 (1980); State v. Brant, 162 W.Va. 762, 765-766, 252 S.E. 2d 901, 903-904 (1979); State v. Phillips, 80 W.Va. 748, 752-753, 93 S.E. 828 (1917); State v. Davis, 52 W.Va. 224, 227-228, 43 S.E. 99 (1902); State v. Robinson, 20 W.Va. 713 (1882).

2. The West Virginia Supreme Court of Appeals noted in State v. Brant, 162 W.Va. 762, 766, 252 S.E.2d 901, 903 (1979) that:

We do not in any way imply by the holding of this case that we are departing from our traditional rule which denies the legitimacy of intoxication as a defense or mitigating circumstance in a criminal case. That rule is founded on the wise recognition that in most cases voluntary intoxication reduces the individual's inhibitions to antisocial activity making the commission of a criminal act more likely. A rule which permits a defendant to plead that because of his intoxication his capacity to control himself or to form a specific intent was diminished would provide every would-be malefactor with a convenient excuse which would appear sufficiently reasonable to confuse any jury. Heretofore, however, we have permitted intoxication to be considered by the jury to reduce first degree murder to second degree murder because it can negate the element of premeditation and deliberation required for a conviction of first degree murder, State v. Robinson, 20 W.Va. 713 (1882), and that rule will continue to apply.

Voluntary intoxication can be used to negate the elements of premeditation and deliberation in the crime of first degree murder. State v. Keeton, 272 S.E.2d 817 (W. Va. 1980).

4.The use of voluntary intoxication as an attempt to negate a specific intent element of a crime is not limited to homicide cases. But because voluntary intoxication is not a complete defense, it should only apply where there are lesser included offenses. State v. Brant, 252 S.E.2d 901, 903-04 (W. Va. 1979).

Intoxication can serve as a defense to burglary if the defendant was so intoxicated that he or she could not form the specific intent to commit a felony after breaking and entering. State v. Phillips, 93 S.E. 828 (W. Va. 1917).

In a forgery case, “the accused may show that he was incapable from intoxication of forming the intent necessary to constitute the crime of forgery.” State v. Fugate, 138 S.E. 318 (W. Va. 1927).

5. Other Relevant West Virgina cases include: State v. Bush, 191 W.Va. 8, 442 S.E.2d 437 (1994); State v. McCarty, 184 W.Va. 524, 401 S.E.2d 457 (1990); State v. Miller, 184 W.Va. 492, 401 S.E.2d 237 (1990); State v. Bragg, 140 W.Va. 585, 87 S.E.2d 689 (1955); State v. Hertzog, 46 S.E. 792 (1904).