Before moving on to discuss the recent vehicular homicide DUI decision in People v. Carlson (October 12, 2011, G043833)__Cal.App.4th__, let’s consider how the defense works (or rather why it doesn’t work).  First of all, unconsciousness caused by voluntary intoxication is only a “partial defense” to a criminal charge in that it may serve to only negate the “specific intent” or state of mind requisite to a particular offense.  (People v. Kelly (1973) 10 Cal.3d 565.)

Penal Code section 22, states:

(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act.

(b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.


In contrast to involuntary intoxication, which may serve as a complete defense, voluntary intoxication resulting in unconsciousness relates to certain specific intent crimes where the individual specifically intended the consequences of the act.  Penal Code section 26, as related to involuntary intoxication, exempts from criminal liability the class of people who “committed the act charged without being conscious.”  Unconsciousness can exist where the subject physically acts in fact but is not, at the time, conscious of acting.  (People v. Ochoa (1988) 19 Cal.4th 353, 424.)  An example of “unconsciousness caused by involuntary intoxication” would be when someone has been rendered unconsciousness when that person hasn’t voluntarily consumed any alcohol or drugs.  We will explore the defense of involuntary intoxication in a future blog post.

CALCRIM jury instruction No. 626 states:

When a person voluntarily causes his or her own intoxication to

the point of unconsciousness, the person assumes the risk that

while unconscious he or she will commit acts inherently dangerous

to human life. If someone dies as a result of the actions of a person

who was unconscious due to voluntary intoxication, then the

killing is involuntary manslaughter.

In Carlson, the defense sought a jury instruction on CALCRIM No. 626, voluntary intoxication resulting in unconsciousness as a defense to implied malice to reduce the crime of second degree murder to involuntary manslaughter.  How is the crime of murder defined?  What is the concept of malice?  What is implied malice?  What is involuntary manslaughter?  Part 3 of this series will cover these topics as related to Carlson.