Criminal Law

3427. Involuntary Intoxication

Consider any evidence that the defendant was involuntarily intoxicated in deciding whether the defendant had the required (intent/ [or] mental state) when (he/she) acted.

A person is involuntarily intoxicated if he or she unknowingly ingested some intoxicating liquor, drug, or other substance, or if his or her intoxication is caused by the force, duress, fraud, or trickery of someone else, for whatever purpose[, without any fault on the part of the intoxicated person].

Bench Notes

Instructional Duty

It appears that the court has no sua sponte duty to instruct on involuntary intoxication, unless the intoxication results in unconsciousness. (See People v. Saille (1991) 54 Cal.3d 1103, 1119 [2 Cal.Rptr.2d 364, 820 P.2d 588] [no sua sponte duty when evidence of voluntary intoxication presented to negate element of offense].) If the defendant is relying on the defense of unconsciousness caused by involuntary intoxication, see CALCRIM No. 3425, Unconsciousness.

In the definition of "involuntarily intoxicated," the phrase "without any fault on the part of the intoxicated person" is taken from People v. Velez (1985) 175 Cal.App.3d 785, 796 [221 Cal.Rptr. 631]. It is unclear when this concept of "fault" would apply if the person has no knowledge of the presence of the intoxicating substance. The committee has included the language in brackets for the court to use at its discretion.

Related Instructions

See CALCRIM No. 3426, Voluntary Intoxication.


Instructional Requirements. See Pen. Code, § 26, subd. 3.

Burden of Proof. See People v. Saille (1991) 54 Cal.3d 1103, 1106 [2 Cal.Rptr.2d 364, 820 P.2d 588] [in context of voluntary intoxication].

Involuntary Intoxication Defined. People v. Velez (1985) 175 Cal.App.3d 785, 796 [221 Cal.Rptr. 631].

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, §§ 34, 15.

3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, §§ 73.01[4], 73.04 (Matthew Bender).


One court has held that a mistake of fact defense (see Pen. Code, § 26, subd. 3) can be based on involuntary intoxication. (People v. Scott (1983) 146 Cal.App.3d 823, 831-832 [194 Cal.Rptr. 633].) For further discussion, see CALCRIM No. 3406, Mistake of Fact.

Related Issues

Unconsciousness Based on Voluntary Intoxication Is Not a Complete Defense

Unconsciousness is typically a complete defense to a crime except when it is caused by voluntary intoxication. (People v. Heffington (1973) 32 Cal.App.3d 1, 8 [107 Cal.Rptr. 859].) Unconsciousness caused by voluntary intoxication is governed by Penal Code section 22, rather than by section 26, and is only a partial defense to a crime. (People v. Walker (1993) 14 Cal.App.4th 1615, 1621 [18 Cal.Rptr.2d 431] [no error in refusing to instruct on unconsciousness when defendant was voluntarily under the influence of drugs at the time of the crime].)

(New January 2006)