Just Say No Excuse: The Rise and Fall of the Intoxication Defense
![handle is hein.journals/jclc87 and id is 492 raw text is: 0091-4169/96/8702-0482
THE JOURNAL OF CRiMINAL LAW & CRIMINOLOGY Vol. 87, No. 2
Copyright © 1997 by Northwestern University, School of Law Phined in U.S.A.
JUST SAY NO EXCUSE: THE RISE AND
FALL OF THE
INTOXICATION DEFENSE
MITCHELL KEITER
I. INTRODUCTION
On perhaps no other legal issue have courts so widely differed, or
so often changed their views, as that of the legal responsibility of in-
toxicated offenders.' The question contrasts the individual's right to
avoid punishment for the unintended consequences of his acts with
what then-New Hampshire Supreme Court Justice David Souter de-
scribed as the individual's responsibility... to stay sober if his intoxi-
cation will jeopardize the lives and safety of others.2 The issue
presents the choice of whether the magnitude of an offense should be
measured from the objective perspective of the community or the sub-
jective perspective of the offender.3
Prompted by myriad changes in social, political, medical and
legal philosophies, nineteenth and early twentieth century courts
greatly expanded the exculpatory effect of intoxication. Beginning in
the 1980s and 1990s, however, the pendulum began to swing back to-
ward a policy of accountability for acts committed while intoxicated.
Throughout this process, the issue has been highlighted by the com-
peting positions of courts and legislatures. For example, in 1994 both
the California and Canada Supreme Courts issued decisions which
protected or expanded a defendant's right to introduce evidence of
his intoxication.4 Both decisions sparked public outrage,5 and were in
effect reversed by new statutes in 1995.6
1 Evers v. State, 20 S.W. 744, 746 (Tex. Crim. App. 1892).
2 State v. Dufield, 549 A.2d 1205, 1208 (N.H. 1988).
3 Note, Constructive Murder-Drunkenness in Relation to Mens Rea, 34 HARv. L R.. 78,
80-81 (1920) [hereinafter Constructive Murder].
4 People v. Whitfield, 868 P.2d 272, 273 (Cal. 1994); Daviault v. The Queen [1994] 3
S.C.R. 63, 65.
5 See Mitchell Keiter, Excuses for Intoxicated Killers, S.F. CHRON., Aug. 8, 1995, at A17;
Clyde H. Farnsworth, Women in Canada Upset by Court Rulings on Drunkenness, N.Y. TIMES,
Nov. 9, 1994, at A7.
6 CAL. PENAL CODE § 22 (West 1988 & Supp. 1996); Act ofJuly 13, 1995, ch. 32, 1995
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Just Say No Excuse: The Rise and Fall of the Intoxication Defense
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