§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 which (a) is not self-induced
or (b) is pathological is a defense if by reason of such 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:



(a) "Intoxication" means a disturbance of
mental or physical capacities resulting from the introduction of substances
into the body;



(b) "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;



(c) "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. [L 1972, c 9, pt of §1;
am L 1986, c 325, §2; gen ch 1993]



 



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.



 



Case Notes



 



  Instruction on intoxication discussed.  60 H. 17, 586 P.2d
1028.



  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.



  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.



  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 §702-400 and this
section.  93 H. 224, 999 P.2d 230.



  Cited:  62 H. 17, 608 P.2d 408.



 



__________



§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).