Voluntary Intoxication 1 and Criminal Responsibility

Behavioral Sciences and the Law Behav. Sci. Law 17: 195±217 (1999) Voluntary Intoxication 1 and Criminal Responsibility Douglas B. Marlowe, J.D., Ph.D.,* Jennifer B. Lambert, J.D., Psy.D.{ and Robert G. Thompson, Psy.D.{ This paper reviews the law related to voluntary intoxication and criminal responsibility in the 50 United States, the District of Columbia, the US Virgin islands, and Puerto Rico. Statutory and case law citations are provided which govern the use of intoxication evidence in each jurisdiction to negate mens rea (i.e., to establish diminished capacity), to support an insanity defense, and to mitigate criminal sentencing. Factors that courts typically focus on when deciding whether to admit this evidence in a particular case are discussed, and these factors are related to clinically relevant criteria. Copyright # 1999 John Wiley & Sons, Ltd. In the early morning hours of July 13, 1992, Montana state police o cers discovered James Allen Egelho shouting obscenities incoherently in the rear cargo area of a station wagon that was disabled in a ditch on the side of a highway. Two acquaintances of Mr. Egelho 's, including the owner of the car, were dead in the front seat from gun shot wounds to the head. Mr. Egelho 's gun, which was later identi ed as the murder weapon, was found lying by the brake pedal along with two empty shell casings. Over a period of ve to six hours at the hospital, and again later at the police station, Mr. Egelho was reportedly belligerent and combative and was described by one o cer as acting ``wildly.'' He was determined to have a blood alcohol content (BAC) of 0.36 percent, which is more than three times the legal limit for operating a vehicle in any jurisdiction. Mr. Egelho reportedly had no recollection of the events leading up to and including the slayings, nor did he have an apparent motive for the crimes. Several eyewitnesses veri ed that he and the two victims had been drinking beer and whiskey steadily over many hours on the preceding day, rst at a party and later at several bars. Witnesses also reported seeing the station wagon in question weaving erratically on * Correspondence to: Douglas B. Marlowe, J.D., Ph.D., Treatment Research Institute at the University of Pennsylvania, One Commerce Square, 2005 Market Street, Suite 1120, Philadelphia, Pennsylvania 19103-7220, USA. E-mail address: MARLOWE@TResearch.com { Institute for Addictive Disorders, MCP Hahnemann University. 1 This paper focuses on the voluntary ingestion of both illicit drugs and alcohol. The topics of involuntary intoxication, pathological intoxication, and automatism are dealt with brie y in the section on the insanity defense. CCC 0735±3936/99/020195±23$17.50 Copyright # 1999 John Wiley & Sons, Ltd.

196 D. B. Marlowe et al. the highway earlier that evening, and police later identi ed ve sites on the highway where a vehicle had apparently left the road. At trial, Mr. Egelho sought to introduce evidence of his intoxication to negate the mens rea (requisite mental state) element of deliberative murder. However, the trial court excluded the evidence pursuant to a recently enacted Montana statute (Mont. Code Ann. } 45-2-203) which bars voluntary intoxication from serving as the basis of a criminal responsibility defense. On appeal, the Montana Supreme Court unanimously held that the statute in question was unconstitutional because it violated the defendant's due process right to have a fair opportunity to defend against the State's accusations (State v. Egelho, 1995). The court reasoned that the statute and its related jury instruction e ectively relieved the State of proving every element of the o ense beyond a reasonable doubt. The State of Montana appealed the case to the United States Supreme Court. The Supreme Court held, in a plurality opinionðjustices Scalia, Rehnquist, Thomas, and Kennedy joined in the majority opinion, with Justice Ginsburg concurring in the judgment but not the reasoningðthat an accused does not have a fundamental right to present evidence of voluntary intoxication in his or her criminal defense (Montana v. Egelho, 1996). If a purported right is not expressly enumerated in the Constitution, a substantive due process analysis inquires as to whether the ``right'' was historically available at the time of the framing of the Constitution or during the formative years of the Republic. If not, the ``right'' may still be recognized, but only if it is ``implicit in the concept of an ordered liberty'' (see, e.g., Roe v. Wade, 1973 (right to privacy)), which is a highly stringent standard. In Egelho, Justice Scalia determined that, at common law, voluntary intoxication was traditionally rejected as a basis for a criminal defense and, in fact, was often viewed as an aggravating factor for purposes of sentencing. That is, substance abuse was commonly introduced as evidence of a defendant's bad moral character or antisocial propensities. Justice Scalia further rejected the defendant's argument that the intoxication defense had gained general acceptance since the late 19 th century, stating that ``fully one- fth of the States either never adopted the new common-law rule... or have recently abandoned it'' ( pp. 2019±2020). Lacking historical support, the Court discerned no fundamental interest on the part of criminal defendants to present such evidence. In a concurring opinion, Justice Ginsburg agreed with the result, but disagreed with the majority's due process analysis. Instead, Justice Ginsburg interpreted the statute as changing the de nition of rst degree murder, which is the state legislature's prerogative. Rather than relieving the prosecution of its burden of proving each element of the o ense, the Montana statute, in Justice Ginsburg's estimation, simply changed the elements themselves. The Egelho opinion has been the subject of heated controversy since its issuance approximately three years ago. Several commentators have attacked the decision and the statute it upheld on constitutional grounds for failing to preserve a defendant's right to present a full defense (e.g., McManus, 1997; Schuh, 1997). In fact, prior to the Egelho case, most criminal law scholars had weighed in on the side of at least partially admitting intoxication evidence (e.g., LaFave & Scott, 1986; Robinson, 1984). Some commentators have focused on the potential social policy rami cations of the decision. McManus (1997), for example, argues that the opinion codi es a ``clear moral reprobation of intoxicated defendants'' ( p. 1283) on the part of the general public. This could have the unintended consequence of

Voluntary intoxication 197 deterring substance abusers from seeking treatment because of the risk of being discriminated against or otherwise subjected to increased legal liability. Other commentators take the contrary position that Egelho reinforces notions of personal responsibility and social justice, and serves to vindicate victims' interests (Gibeaut, 1997; Layton, 1997). Contrary to the position taken by many legal theorists, this argument is substantially more in line with the current political climate. It would arguably be ``political suicide'' for a legislator to be perceived (accurately or inaccurately) as advocating reduced criminal responsibility on the part of substance-abusing o enders. In fact, in the immediate wake of Egelho, it has been reported that bills were introduced in the assemblies of at least ten states to enact legislation similar to the Montana statute (Gibeaut, 1997). To our knowledge, however, none of these bills has been enacted to date. Regardless of one's views about the propriety of the Egelho opinion, its import has been substantially overestimated by commentators on all sides of the debate. The decision merely examined the constitutionality, under federal law, of excluding intoxication evidence. It is possible for state courts to interpret the exclusion of such evidence as violating a state constitution, statute, rule of evidence, or common law doctrine. Further, it is not at all clear that the exclusion re ects prevailing legal views about the use of intoxication evidence to negate mens rea. Justice Scalia correctly observed that ``fully one- fth'' of US jurisdictions bar the introduction of such evidence for this purpose. Simple arithmetic reveals, therefore, that approximately four- fths (approximately 80%) of jurisdictions admit such evidence in certain circumstances, which Justice O'Connor underscored in her dissenting opinion in Egelho. Because jurors often have very negative impressions about substance abuse and substance abusers, it may not be a good trial strategy to introduce such evidence in many cases. Attorneys and forensic experts should, however, be aware of the various ways in which evidence of voluntary intoxication can potentially be utilized. Rather than presuming that such evidence is nearly always inadmissible or in ammatory, lawyers and experts should be prepared to evaluate the pros and cons of introducing this evidence within the framework of an overall criminal defense 2 strategy. In fact, although courts are unlikely to second-guess a speci c strategic decision not to admit such evidence (see, e.g., Commonwealth v. Davenport, 1981), a failure to consider its potential utility might, under some circumstances, constitute ine ective assistance of counsel (see, e.g., Commonwealth v. Bailey, 1978). This is particularly important because substance abuse is among the most prevalent psychiatric disorders in forensic and correctional populations, and is the most common comorbid behavioral syndrome in all cases involving violence, abuse, neglect, or other criminal activity. The National Institute on Drug Abuse (NIDA, 1993) estimates that roughly one-half of all violent episodes in this country are mediated by acute intoxication on the part of the perpetrator and/or victim. Substance abuse is estimated to be a contributing factor in between one-half and 2 This paper focuses mainly on the use of intoxication evidence by the defense. In practice, there are few grounds upon which the prosecution may independently introduce such evidence because of its obvious prejudicial e ect (unless, of course, the defendant is charged with a drug-related o ense). The prosecution is often limited to using evidence of intoxication to rebut prior testimony, to impeach the credibility of a witness or, in rare instances, to show signature conduct (i.e., modus operandi) on the part of the defendant.

198 D. B. Marlowe et al. two-thirds of violent crimes (62% assault, 68% manslaughter, 54% murder or attempted murder, 52% rape or sexual assault; NIAAA, 1990). Between approximately one-half and four- fths (51% to 83% of males, 41% to 84% of females) of arrestees test positive for one or more illicit drugs at the time of arrest (National Institute of Justice, 1996). Over one-quarter of state and federal prison inmates, and over one-third (36%) of all o enders under supervision of corrections authorities, report having been under the in uence of drugs or alcohol at the time of the index o ense (Bureau of Justice Statistics, 1996). Similarly, more than half of incarcerated juvenile o enders report having regularly abused alcohol or drugs immediately prior to imprisonment, and over one-third of these imprisoned juveniles report having been under the in uence at the time of the o ense (OJJDP, 1997). The drug±crime link is also demonstrated in non-correctional populations. Data from the National Household Survey on Drug Abuse reveal that non-identi ed substance abusers in the community are signi cantly more likely to commit crimes than non-substance abusing community controls (Harrison & Gfroerer, 1992). Among psychiatric samples, the strongest predictor of future violence appears to be a comorbid substance use disorder (Monahan, 1996; Steadman et al., 1998; Swanson, Holzer, Ganju, & Jono, 1990). When the nature and severity of substance abuse is statistically controlled for, the link between violence and other mental illness is substantially attenuated, if not eliminated. These data clearly indicate that the odds are in favor of identifying a substance abuse issue that might form the basis of a criminal trial strategy. In the following sections of this paper, we review laws related to criminal responsibility and voluntary intoxication in the 50 United States, the District of Columbia, the US Virgin Islands, and Puerto Rico. 3 Statutory and case law citations are provided which govern the use of intoxication evidence in each jurisdiction to negate mens rea, to support an insanity defense, and to mitigate criminal sentencing (see the appendix). Subsequently, we review factors that courts typically focus on when deciding whether to admit this evidence in a particular case, and relate these factors to clinically relevant criteria. VOLUNTARY INTOXICATION TO NEGATE MENS REA As Justice Scalia observed in the Egelho opinion, voluntary intoxication was uniformly rejected as a defense in early common law. However, in 1882, the United States Supreme Court in Hopt v. People noted that, where the o ense charged requires a speci c state of mind, evidence of an accused's intoxication ``necessarily becomes a material subject of consideration by the jury'' (p. 634). By the early 1900s, numerous American courts began receiving such evidence to determine the defendant's mental state at the time of the crime (Layton, 1997). Presently, US jurisdictions take one of four approaches to the use of evidence of voluntary intoxication to negate mens rea. These approaches are outlined in the rst column of the appendix. One approach, currently followed by twelve jurisdictions 3 Federal and military law related to voluntary intoxication and criminal responsibility are not included in the survey.

Voluntary intoxication 199 (23% of jurisdictions), is to bar the use of such evidence in all criminal cases to negate any element of the o ense. A substantial number of jurisdictions (n ˆ 20, 38%), however, have statutory language which permits evidence of voluntary intoxication, where relevant, to negate ``an element of the o ense.'' This language is interpreted as applying to the mens rea component of ``general intent'' crimes; that is, all crimes predicated on intentional misconduct. The majority of these jurisdictions speci cally exclude recklessness on the face of the statute. For example, Alabama's Criminal Code provides that ``[w]hen recklessness establishes an element of an o ense and the actor is unaware of a risk because of voluntary intoxication, his unawareness is immaterial in a prosecution for that o ense'' (Ala. Crim. Code } 13A-3-2[b]). The remaining general intent jurisdictions, while not speci cally excluding recklessness or gross negligence in the statute, preclude such a defense through case law (see, e.g., LaFave & Scott, 1986; State v. Glidden, 1982). The reasoning behind these cases is that recklessness is inferred from the act of abusing drugs or alcohol. In essense, it is reckless per se to become voluntarily intoxicated. A plurality of jurisdictions (n ˆ 21, 40%) only permit evidence of voluntary intoxication to negate ``speci c intent.'' The statutory language in most (n ˆ 18) of these jurisdictions expressly limits application of the defense to speci c intent o enses. An additional three jurisdictions permit the defense to negate ``a required purpose, motive or intent.'' In practice, both statutory schemes achieve the same e ect (see, e.g., Robinson, 1984; State v. Plenty Horse, 1971). The conceptual distinction between ``general intent'' and ``speci c intent'' is not clearly delineated. General intent refers to any intention to perform a proscribed act or closely related act, while speci c intent requires a purpose plus deliberation (see, e.g., Kaplan & Weisberg, 1991). For example, an intention to cause grievous bodily harm, resulting in death, is su cient for second or third degree murder (depending on the state), which are general intent crimes. First degree murder, on the other hand, requires deliberation or premeditation to cause death. Similarly, in virtually all states, robbery is a general intent crime, predicated upon an intention to steal. Burglary, on the other hand, requires a speci c intent to break and enter into a residence, with a further intent to commit an enumerated felony within. Assault with intent to kill is a speci c intent crime, requiring the defendant to undertake the assault with the purpose of killing, whereas simple assault or assault with a deadly weapon are general intent crimes, requiring only that the defendant possess a general intent to cause harm. Conceptually, this distinction has proven troublesome for courts (see, e.g., Layton, 1997) and has been labelled as an arti cial device which achieves a certain result rather than re ecting a coherent theory (see, e.g., Robinson, 1984). The actual e ect is to categorize intentional crimes along two ``tiers'' of seriousness, re ecting greater or lesser degrees of moral culpability and, very often, greater or lesser sentences. Those states that have limited evidence of voluntary intoxication to negate speci c intent have, in e ect, limited the availability of the defense to a relatively smaller class of more serious felonies. Further, in most instances, a general intent crime is available as a ``lesser included o ense'' of a speci c intent crime. For example, assault with a deadly weapon is a lesser included o ense of assault with intent to kill. Thus, in speci c intent states, a serious level of liability is virtually assured for the intoxicated defendant.

200 D. B. Marlowe et al. Finally, a small number of jurisdictions (n ˆ 3, 6%) admit evidence of voluntary intoxication only in rst degree murder cases. These states only permit voluntary intoxication to negate the requisite element of premeditation or deliberation, thus typically reducing criminal culpability to second or third degree murder (depending on the state), which are lesser included o enses. In some instances, voluntary intoxication may reduce homicide liability to voluntary manslaughter. Generally, there are two alternative ``prongs'' of voluntary manslaughter. The rst prong is predicated upon ``provocation'' or ``heat of passion,'' requiring the defendant to have committed the act in response to extreme emotional arousal caused by the provocation of the victim or an involved bystander. Provocation is typically judged by an ``objective'' standard, requiring that the average, ordinary, prudent person would have been instigated to violence under those same circumstances. Because it is not judged by the standard of the average intoxicated person, it is not su cient to show that the defendant became extremely aroused due, in part, to a low frustration threshold from drugs or alcohol (see, e.g., Commonwealth v. Knight, 1994). The second prong of voluntary manslaughter is predicated upon an unreasonable belief in self-defense; what is referred to as an ``imperfect self-defense claim.'' A reasonable, but mistaken, belief in self-defense is a complete defense to any liability for homicide. For example, if the victim was pointing a toy gun at the defendant in jest, then the defendant may not be liable at all, even if the danger was misinterpreted. The test is whether an ordinary, reasonable, and prudent person would have believed that he or she was in imminent danger of death or serious injury. If, however, the defendant unreasonably believed that he or she was in danger due, for example, to a cocaine-induced paranoid delusion, the charges may be reduced to voluntary manslaughter (see, e.g., Commonwealth v. Galloway, 1984; 18 Pa. Stat. Ann. } 2503). Voluntary intoxication rarely, if ever, reduces homicide liability below the level of involuntary manslaughter, which is predicated upon recklessness, or below criminally negligent homicide, which is predicated upon gross negligence (see, e.g., People v. Ricardi, 1992). As noted, voluntary intoxication is essentially viewed as being reckless per se. Further, in many states, the o ense of ``criminally negligent homicide'' or ``vehicular homicide'' is speci cally intended to encompass drunk driving and related behavior (e.g., Cal. Penal Code } 191.5). A nal issue in homicide cases relates to the ``felony murder doctrine.'' In most states, a defendant may be charged with murder for an unintended killing that occurs during the course of an enumerated felony. For example, if a customer is accidentally killed during a store robbery, the defendant may be charged with murder even if the killing was unintended and non-contemplated. In e ect, the intent to kill is ``transferred'' from the intent to commit the robbery. Notably, if the underlying felony (e.g., robbery) is a general intent crime, and the defendant nds himself or herself in a speci c intent jurisdiction, voluntary intoxication may be unavailable as a defense to felony murder (see, e.g., Daniels v. State, 1998). If, however, the underlying felony is a speci c intent crime (e.g., burglary), then evidence of voluntary intoxication might be admissible to negate felony murder (see, e.g., Commonwealth v. Halbert, 1991). Many jurisdictions, however, have not had occasion to examine this issue directly.

Voluntary intoxication 201 VOLUNTARY INTOXICATION AS A BASIS FOR AN INSANITY DEFENSE Traditionally, voluntary intoxication could not form the basis of an insanity defense. Regardless of which insanity test a jurisdiction followsðe.g., M'Naghten's Rule, Irresistible Impulse, American Law Institute (ALI) TestÐthe cognitive or volitional impairment must be the product of a ``mental disease or defect.'' Mere intoxication, without more, ordinarily does not satisfy the de nition of a mental disease or defect (see, e.g., LaFave & Scott, 1986). A substantial minority of jurisdictions (n ˆ 17, 32%) allow an insanity defense to be predicated upon substance abuse, but only if the defendant can demonstrate that chronic abuse of drugs or alcohol has resulted in a ``settled insanity'' (see, e.g., People v. Free, 1983). In these jurisdictions, acute intoxication, by itself, cannot support an insanity defense. Rather, the defendant must su er from an independent syndrome (e.g., substance-induced hallucinosis, substance-induced delusional disorder, dementia) which pre-dates and continues beyond the incident of intoxication that was linked to the crime. Thus, expert testimony is required in all such cases to prove that an independent, diagnosable mental disease or defect is present. Mere evidence of chronic substance abuse, without an accompanying diagnostic component, is not su cient (see, e.g., Anderson v. State, 1978; State v. Hart eld, 1989). Furthermore, if the accompanying syndrome lasts only as long as the defendant remains acutely intoxicated, it will ordinarily not su ce. For example, a paranoid psychosis that is linked to acute phencyclidine (PCP) toxicity, without more, would be insu cient. The traditional rule further required that substance-induced insanity be ``permanent''; however, some recent cases have held that a mental defect is su ciently `` xed'' to satisfy the permanence requirement if it was present before and after the current instance of intoxication, even if it eventually resolves. For instance, in Porreca v. State (1981), a Maryland appeals court held that a defendant was entitled to an insanity instruction where chronic use of PCP resulted in a paranoid psychosis, even though the psychosis was not permanent. The fact that the psychosis was induced by the PCP and outlasted the e ects of the drug was su cient to establish it as `` xed'' for purposes of the defense. Despite some liberalization of the rule in certain instances, there is a growing hostility toward the insanity defense in general, particularly as it relates to the voluntary ingestion of drugs or alcohol. Currently, approximately one-half of US jurisdictions (n ˆ 24, 45%) explicitly bar evidence of voluntary intoxication to support an insanity defense (nine jurisdictions (17%) have not resolved this issue). Given that the insanity defense is successfully raised in only a very small proportion of cases overall (see, e.g., Melton, Petrila, Poythress, & Slobogin, 1997), it is generally not a good trial strategy to rely on this defense, even in those jurisdictions that technically allow it. It should be noted, however, that an insanity defense is substantially easier to establish in cases involving involuntary intoxication or ``pathological intoxication.'' Involuntary intoxication refers to intoxicated or drugged conditions that are induced without the individual's consent (i.e., through fraud, duress, force, or the contrivance of another), or when the individual does not have reason to know that the substance would cause intoxication. Pathological intoxication is de ned as

202 D. B. Marlowe et al. intoxication that is grossly excessive in degree given the amount of intoxicant that was ingested, where the individual did not know that he or she was unusually susceptible to the substance. Importantly, the defendant must lack actual knowledge about the potential e ect(s) of the substance on his or her behavior, and must not have reason to know about such e ects. If, for instance, the defendant has experienced unusual reactions to a drug in the past, a defense of involuntary intoxication or pathological intoxication would be unavailable. Insanity standards for involuntary intoxication vary signi cantly by jurisdiction. For instance, in Louisiana (La. Rev. Stat. Ann. Tit. 14, } 15), involuntary intoxication is a complete defense to criminal liability if the intoxication was the ``direct cause'' of the commission of the crime. Kentucky utilizes the ALI Test for insanity based upon involuntary intoxication, in which the defendant must demonstrate that, due to the intoxication, he or she was substantially incapable of appreciating the wrongfulness of the conduct or of conforming it to the requirements of the law (Ky. Rev. Stat. Ann. } 501.080). This standard incorporates an ``irresistible impulse'' prong, permitting the defense where intoxication impairs the defendant's volition, but does not necessarily interfere with his or her capacity to appreciate the wrongfulness of the conduct. Kansas, in contrast, requires the defendant to prove both prongs of the ALI Test for involuntary intoxication; speci cally, that the defendant was substantially incapable of appreciating the wrongfulness of the conduct and of conforming it to the requirements of the law (Kan. Stat. Ann. } 21-3208). Courts are hesitant to recognize a defense of pathological intoxication if it is induced by an idiosyncratic reaction to the voluntary ingestion of illicit drugs or alcohol, which are known to have intoxicating qualities (see, e.g., Commonwealth v. Henry, 1990; People v. Matthews, 1985). In contrast, this defense is more likely to be available in cases involving idiosyncratic or ``paradoxical'' reactions to prescription medication. Such reactions may not involve intoxication per se, but rather may be characterized by heightened aggression or other altered mood states. For example, in Brancaccio v. State (1997), a Florida appellate court ruled that a defense of involuntary intoxication was available to a defendant who allegedly committed a murder and kidnapping while experiencing rare hypomanic and psychotic reactions to sertraline. As noted, however, such a defense would be unavailable if the defendant knew, or had reason to know, about his or her heightened sensitivity to the substance. A related issue to the insanity defense is the defense of ``automatism.'' In cases involving extreme intoxication or extreme idiosyncratic reactions to a substance, an individual may become so delirious or dissociated as to be, in essence, unconscious of his or her actions. In these rare instances, the law may view the individual as not having engaged in the actus reus (requisite act) of the o ense (see, e.g., Fulcher v. State, 1981). Rather than negating the defendant's mental state, this defense negates the conduct itself. Similar to the insanity defense, the automatism defense is unavailable if the defendant knew, or had reason to know, about his or her hypersensitivity to the substance (see, e.g., Tift v. State, 1916). The automatism defense is rarely, if ever, successfully raised in cases involving the voluntary ingestion of drugs or alcohol. It is, for all intents and purposes, reserved for instances of involuntary intoxication, pathological intoxication, or idiosyncratic reactions to a substance. Yet, even in such cases, the automatism

Voluntary intoxication 203 defense is rarely raised in this country, and when it is raised, it is often treated (erroneously) by courts as a variant of the insanity defense (Melton et al., 1997). It may, therefore, have little practical utility in typical forensic work. As a general matter, absent fairly compelling facts, it is very di cult to establish an insanity defense predicated on intoxication, and it is even more di cult to successfully invoke an automatism defense. Therefore, if a successful mens rea defense is unlikely or unavailable, it is often preferable to focus one's e orts on sentencing mitigation or other dispositional issues. VOLUNTARY INTOXICATION AS A MITIGATING FACTOR IN SENTENCING Evidence of voluntary intoxication is always admissible in capital sentencing hearings to mitigate against the death penalty. The United States Supreme Court held in Lockett v. Ohio (1978) that a sentencer must be able to consider any aspect of a defendant's character or record that the defendant pro ers as a basis for a sentence less than death. This rule was later reiterated in Eddings v. Oklahoma (1982), in which the Court held that ``any relevant mitigating factor'' must be considered when contemplating the death penalty. Most state capital sentencing statutes contain a ``catch-all'' provision for mitigating evidence. Following a non-exclusive list of sample mitigating factors, there is typically a provision which permits ``any other relevant evidence of mitigation'' (e.g., 42 Pa. Stat. Ann. } 9711[e][8]). Under this provision, the defendant is not required to satisfy a particular substantive standard for admissibility. There is no explicit requirement, for example, that the defendant must connect his or her intoxication to the murder, nor is it necessary to demonstrate an e ect of the intoxication on the defendant's volition, cognitive capacity, or moral judgment. Indeed, evidence of voluntary intoxication may, under some circumstances, be admitted in capital sentencing hearings without any additional explanation (unless it is entirely irrelevant), leaving it to the fact- nder to derive some sympathetic lesson from the testimony. As a practical matter, however, it is preferable to speci cally link the intoxication to the murder in question. Capital sentencing statutes often list speci c mitigating factors that are potentially relevant to substance abuse. For example, the list of mitigating factors may contain an ``insanity-like'' or ``provocation-like'' provision, in which mitigation is recommended if the defendant acted under extreme mental or emotional disturbance; was signi cantly impaired in his or her ability to appreciate the wrongfulness of the conduct or to con rm the conduct to the requirements of the law; or acted under the heat of passion or extreme duress (e.g., 42 Pa. Stat. Ann. } 9711[e][2]-[5]). These sentencing standards are similar to, but less rigorous than, their substantive counterparts (e.g., the insanity standard proper). By connecting the defendant's intoxication and criminal conduct to these enumerated standards, the fact- nder is more apt to be convinced not to impose a capital sentence. For non-capital o enses, when voluntary intoxication is speci cally mentioned in a sentencing guideline, it is almost always to exclude or limit its consideration. In many instances, however, this issue is addressed in case law rather than statute.

204 D. B. Marlowe et al. Courts are often called upon to interpret the admissibility of intoxication evidence in relation to sentencing provisions containing insanity-like, catch-all, or other language (see, e.g., Commonwealth v. Doyle, 1979; State v. Marquez, 1980). We were unable to uncover published precedent on this point in the majority (n ˆ 30, 57%) of jurisdictions. Presumably, trial courts make these determinations on a fairly routine basis; however, in many jurisdictions, the issue has apparently not been explicitly addressed or resolved on appeal. Currently, nine jurisdictions (17%) explicitly bar the use of evidence of voluntary intoxication in sentencing mitigation (see the Appendix). Courts in a few jurisdictions (n ˆ 8, 15%) admit such evidence pursuant to a catch-all sentencing provision which, for example, permits evidence of ``any other factors'' that may be relevant to mitigation of punishment (e.g., Ill. Ann. Stat. ch. 730 } 515-5-3.1). Under such a catch-all provision, a defendant may not be explicitly required to connect the intoxication to the crime, to meet a threshold standard, or to establish a particular level of incapacitation from drugs or alcohol. As a practical matter, however, making this connection is more convincing to the fact- nder. Further, as the link between substance use and the crime becomes more attenuated, the defendant risks having the evidence excluded as being irrelevant or misleading. Five jurisdictions (9%) admit evidence of voluntary intoxication pursuant to a speci c substantive standard in the sentencing statute or in case law that includes insanity-like or capacity-like language. The wording and stringency of such provisions vary considerably by jurisdiction. For instance, for purposes of sentencing, Arizona requires a defendant to demonstrate that intoxication signi cantly reduced his or her capacity to appreciate the wrongfulness of the conduct or to conform it to the requirements of the law (Ariz. Rev. Stat. } 13-702). In contrast, California and North Carolina require a showing that the defendant su ered from a mental condition that would reduce his or her culpability (Cal. Rules of Court, Rule 423; N.C. Gen. Stat. } 15a-1340.16). It should also be noted that some jurisdictions regard post-o ense or postconviction rehabilitation e orts as relevant to sentencing. North Carolina is a rare example of a state that expressly includes a defendant's involvement in substance abuse treatment as a statutory mitigating factor (N.C. Gen. Stat. } 15a- 1340.16[E]). Other state statutes simply list a defendant's ``rehabilitative needs'' as a relevant consideration for sentencing, without speci cally mentioning substance abuse or the likelihood of success in rehabilitation. Some courts have also speci cally viewed successful substance abuse rehabilitation as favoring a lighter sentence (see, e.g., People v. Chen, 1991; People v. Smith, 1995), while others have, conversely, been negatively predisposed toward failed e orts at rehabilitation (see, e.g., State v. Wielkiewicz, 1993). 4 4 Although this paper focuses on state and territorial law, federal sentencing guidelines may also be instructive on this point. In federal court, voluntary intoxication ordinarily cannot serve as a basis for a ``downward departure'' from the U.S. Sentencing Guidelines (} 5K2.13). There is some indication in case law, however, that post-o ense rehabilitation might serve as a basis for a downward departure, but only where the extent of the rehabilitation is ``exceptional'' or ``extraordinary,'' and the defendant ``demonstrates a degree of acceptance of responsibility that is substantially in excess of that ordinarily present'' (U.S. v. Sally, 1997, p. 80; see also States v. Harrington, 1992).

Voluntary intoxication 205 EVALUATING A VOLUNTARY INTOXICATION ISSUE The previous discussions focused on the substantive criteria governing the admissibility of intoxication evidence. These standards, however, merely determine the threshold conditions under which such evidence may be received at trial. Judges and juries play the decisive role in determining whether the evidence will be admitted and credited in a particular case. The proponent of intoxication evidence must establish an initial foundation (``burden of production'') for the evidence and must further demonstrate that the pro ered testimony is relevant and non-misleading. Following the presentation of the evidence in court, the judge may still determine that there was an insu cient showing of intoxication to support a jury instruction on the issue. Although, as a practical matter, the jury will have already heard the evidence, the jury will not be reminded, and may not be permitted, to consider the implications of the evidence during deliberations, nor will it be asked to make a speci c nding about the defendant's degree of intoxication. The burden of proof varies according to the jurisdiction and legal theory. For instance, depending on the state, an insanity defense may need to be proven by a preponderance of the evidence, while sentencing hearings might only require the defendant to produce evidence ``su cient to support a nding'' of a mitigating factor. Regardless, it is essential to establish a convincing foundation for the evidence, because there is little likelihood that a trial court's evidentiary determination will be disturbed on review. State appellate courts will generally overturn a refusal to hear intoxication evidence only on a very limited standard of review, such as ``abuse of discretion'' (see, e.g., Commonwealth v. Gribble, 1997; State v. Austin, 1993; State v. Jones, 1997; State v. Lewisohn, 1977; State v. Lowe, 1993; State v. Mitts, 1998) ``plain error,'' or ``clearly erroneous'' (see, e.g., State v. Barnes, 1996; State v. Johnson, 1995). Courts are similarly disinclined to disturb jury verdicts. The majority of states will not disturb a jury nding unless, viewing the evidence in the light most favorable to the non-moving party, a reasonable jury could not have reached that determination beyond a reasonable doubt (see, e.g., State v. Cole, 1996; State v. Jones, 1997; State v. Walker, 1995). Therefore, as a practical matter, there is little recourse against ``jury nulli cation'' of intoxication evidence. Courts are notoriously disinclined to accept a defendant's bald assertion that he or she was seriously intoxicated at the time of the o ense, and they are particularly hesitant to accept the self-serving assertion that, due to the intoxication, the defendant was unable to appreciate the wrongfulness of the conduct or to conform it to the requirements of the law. Rather, courts look to more ``objective'' factors to determine whether the defendant is entitled to a jury instruction. Characteristics of the O ense Courts are particularly apt to focus on the circumstances of the o ense itself. The most commonly mentioned factors in court decisions include whether the defendant had an apparent motive for the o ense; whether the o ense required a coordinated sequence of conduct over time; whether adverse witnesses, if any, perceived the defendant as being intoxicated; and whether the defendant engaged

206 D. B. Marlowe et al. in subsequent e orts to conceal the o ense (see, e.g., Boettcher, 1987; LaFave & Scott, 1986). For example, the Supreme Court of Ohio held that a defendant was not entitled to a jury instruction on intoxication where witnesses reported that the defendant ``held [his] gun perfectly steady,'' ``was not staggering,'' and ``had no trouble ejecting the clip from his weapon, reloading, and ring several times'' (State v. Mitts, 1998, p. 528). Similarly, the Pennsylvania Supreme Court rejected a defendant's request for an intoxication instruction where the defendant ``was su ciently in control of his faculties to remove [the victim's] valuables, dismember his body, bag the remains, and clean the crime scene'' (Commonwealth v. Gribble, 1997, p. 433). In contrast, the Supreme Court of Kentucky held that a defendant was entitled to an intoxication instruction where all of the witnesses described him as drunk, where he had no memory for the crime, and where his BAC was 0.11% ve hours after the crime (Jewell v. Commonwealth, 1977). A motive for the crime may be inferred if the criminal behavior was contemplated prior to the intoxication, particularly if the defendant obtained commercial gain or revenge against an adversary. For example, inner-city youths may ingest drugs or alcohol immediately prior to confronting rivals or committing a burglary. In such cases, substance abuse may be part of a pre-o ense ``ritual'' designed to reduce anxiety or to gather courage. If the o ense (robbery or assault) was contemplated prior to imbibing the drugs, and if the youths obtained commercial gain or revenge, it would be likely to be an up-hill climb to establish an intoxication defense. If, on the other hand, one of the youths unexpectedly ran into a rival after a party, and assaulted him during a spontaneous exchange, a defense based upon voluntary intoxication would stand a better chance. The motive of revenge might still be present, but there would be no indication that the assault was contemplated prior to the intoxication. In this situation, intoxication might be viewed as a ``match'' that spontaneously ignited an already explosive situation. Although the youth might still have intended to commit the assault, in a speci c intent jurisdiction, this could serve to negate an element of deliberation or premeditation. Courts are particularly interested in whether the crime was spontaneous as opposed to planned, whether it was carried out over a long or short period of time, and whether it involved an ordered sequence of steps. For example, if a defendant stole a car, drove it across town to pick up an accomplice, and then used the car during a robbery, this would indicate planning and sequencing over an extended time. If, however, the defendant picked up a brick from the road, threw it through a store window, and grabbed an odd assortment of items, this would indicate minimal planning and a rapid progression of events. If both defendants had BACs of 0.10, the scenarios might suggest that the rst defendant had developed a relatively greater tolerance to alcohol. Courts and juries are also heavily in uenced by the reports of witnesses with adverse interests to the defendant. For instance, if the victim or an innocent bystander testi es that the defendant appeared inebriated, smelled of alcohol, or behaved strangely, this will likely carry much weight. Similarly, if uninvolved neighbors report that they observed the defendant smoking ``crack'' all afternoon, this testimony is likely to be credited. In contrast, however, statements of drugusing accomplices (who may, in fact, be in the best position to know what intoxicants were ingested) are least likely to be credited by the fact- nder. Further,

Voluntary intoxication 207 as a practical matter, fellow substance abusers are unlikely to be persuaded to testify, because such testimony may expose them to legal liability. A defendant might spontaneously commit a crime while intoxicated, and then subsequently sober up and engage in coordinated e orts to escape or to conceal the o ense. Presumably, the longer the period of time between the o ense and the subsequent e orts at obfuscation, the more likely it is that the defendant's mental status may have changed. Although courts are in uenced by this logic, there is often a bias against defendants who attempt to cover up their tracks. If, for example, a defendant asserts that he was so intoxicated as to be unable to appreciate the wrongfulness of the conduct, this leaves the defendant open to the challenge that he evidently understood its criminality or else he would not have attempted to conceal it. Similarly, if a defendant argues that intoxication prevented him from conforming his conduct to the requirements of the law, he is open to the retort that he was evidently capable of conforming his conduct to the ``law'' of selfpreservation. Although covering one's tracks is not necessarily inconsistent with having sobered up after the event, the apparent e ort to ``have one's cake and eat it too'' generally does not sit well with fact- nders. Characteristics of the Substance Studies have shown a signi cant correlation between abuse of various psychoactive substances and crime or violence. This correlation does not, however, necessarily imply causation. It is quite possible that the relationship between substance abuse and crime is moderated by another, independent variable such as socioeconomic status or antisociality. Certain classes of substances, however, are known to have disinhibiting and agitating e ects on the central nervous system (CNS), and have been shown to induce aggression in controlled settings. Alcohol, in particular, has been demonstrated to trigger aggressive responses in the laboratory and, indeed, alcohol is the drug most closely linked to violent crime (see, e.g., De La Rosa, Lambert, & Gropper, 1990; Fagan, 1990, 1993; Whit eld, 1990). Other substances that initially have activating and disinhibiting e ects on the CNS (e.g., stimulants, PCP, cocaine) often cause agitation and aggression as well, and these drugs are most apt to trigger spontaneous criminal behavior when, in high doses, they precipitate delusions or paranoid ideation. Notably, however, although initial reports linked PCP to delirium, extreme psychosis, and unprovoked bouts of violence, current data suggest a more ``sobering'' analysis of its e ects (see, e.g., Brecher, Wang, Wong, & Morgan, 1988; Davis, 1982; Khajawall, Erickson, & Simpson, 1982; Kinlock, 1991). Extreme reactions to acute PCP ingestion do occur, but they are apparently rare (Fauman & Fauman, 1979, 1982). Due to the relatively low purity and poor quality of street-level PCP, and the fact that many PCP abusers titrate their doses over months or years (leading to substantial tolerance), acute psychotic reactions are much rarer today than they apparently were when pharmaceutical-grade PCP rst hit the streets in the 1970s. Substances that have strong sedating and inhibiting qualities are less likely to produce violent reactions. For instance, when controlling for subjects' prior criminal history, no link has been shown between violent behavior and marijuana or heroin usage (see, e.g., Goldstein, 1985; Inciardi & Chambers, 1972). Sedatives

208 D. B. Marlowe et al. such as barbiturates or benzodiazepines may produce acute dysphoria, agitation, and paranoia in high doses, particularly when taken over an extended binge (in which the subject is sleep- or food-deprived). Ordinarily, however, these drugs cause fatigue, lethargy, euphoria, and psychomotor slowing, which tend to be incompatible with violence or coordinated criminal activity. Importantly, even severe clinical e ects from substance use would not necessarily interfere with a subject's capacity to form intent. Acute intoxication generally has its most profound e ects on impulse control, executive functions ( planning and sequencing), and motor coordination. In many cases, therefore, it may precipitate spontaneous behavior that is intended, but not deliberated. For example, an intoxicated person may be predisposed to lash out aggressively against an actual or perceived insult. Typically, this reaction will be intended, but will be sudden and ill conceived. Therefore, in many instances, intoxication evidence may be useful to negate speci c intent, but will not make a particularly compelling case for negating general intent. In the absence of a severe psychotic reaction, dissociation, or delirium, it is hard to imagine a scenario in which an intoxicated defendant could not appreciate the wrongfulness or criminality of his or her conduct. If, for example, the defendant was acting under a paranoid psychotic delusion, then an imperfect self-defense claim or an insanity defense (if the delusion is `` xed'') might be promising. Similarly, psychosis or dissociation might be useful for mitigating sentencing in those jurisdictions that admit such evidence pursuant to either an insanity-like or catch-all sentencing provision. In the absence of psychosis or dissociation, however, a nding of mitigation would be less promising in jurisdictions that require a showing that the defendant lacked the capacity to distinguish right from wrong. A nal issue related to the psychopharmacological e ects of drugs concerns ``black-outs.'' Many criminal defendants purport not to recall the circumstances of the o ense, blandly attributing this to substance-induced amnesia. It is, indeed, possible for an individual to engage in coordinated, goal-directed activity, and to appear normal to bystanders, but still have no memory for the events. However, barring any unusual susceptibility to the drug, black-outs have only been de nitively connected to relatively high blood-alcohol levels (see, e.g., Goodwin, 1995; Ryan & Butters, 1983), intravenous administration of benzodiazepines (Kumar, Mac, Gabrielli, & Goodwin, 1987), or a combination of sedatives and alcohol (Morris & Estes, 1987). A particular benzodiazepine, Triazolam (Halcion), has also been reported to cause black-outs at therapeutic dosages (Rothschild, 1992). There are very few data to support the occurrence of true black-outs from opiates, marijuana, cocaine, PCP, or stimulants. Although memory may be sketchy after abusing these drugs, cued recall should assist the defendant to remember salient events, particularly those that were paired with violence or autonomic arousal. Characteristics of the Defendant Criminal responsibility assessments involving voluntary intoxication generally raise the same types of concern as other forensic evaluations; e.g., the relation of psychological constructs to substantive legal criteria (see, e.g., Marlowe, 1995);

Voluntary intoxication 209 use of instruments and procedures that satisfy evidentiary standards (see, e.g., Heilbrun, 1992); assessment of malingering, response set, and psychopathy; and assessment of prognosis and amenability to treatment. As in other forensic contexts, traditional clinical constructs often have limited relevance to legal standards for intoxication evidence. With the exception of cases involving the insanity defense, or those involving sentencing mitigation predicated upon rehabilitation, in most instances, the defendant does not have to satisfy diagnostic criteria for a substance use disorder. A single incidence of intoxication is generally all that must be alleged. Of course, a complicated history of substance abuse might persuade the fact- nder that the defendant has a propensity for severe intoxication, and thus was more likely to have been inebriated at the time of the o ense. Paradoxically, however, this might suggest a greater tolerance for the substance on the part of the defendant, and thus a greater ability to engage in deliberate behavior despite a relatively high serum blood level of the drug. Few, if any, personality or clinical factors have been empirically demonstrated to predict or relate to substance-induced crime. Senay and Wettstein (1983) reported anecdotally on 24 homicide cases in which voluntary intoxication appeared to mediate the criminal conduct. In those cases, the subjects took unusually high doses of the drug, had no previous arrest history, showed no evidence of premeditation, had no apparent motivation for the crime, and reported no plan to avoid capture. Thus, ``naõè ve'' subjects, those with limited substance use histories and lacking a recidivist criminal orientation, appeared to be the best candidates for an intoxication defense. Broad-ban clinical assessments of substance abusing defendants are likely to uncover additional diagnostic issues that might help or hinder an intoxication defense. For instance, major depression, anxiety disorders, and antisocial personality disorder (APD) are highly prevalent comorbid syndromes among substance abusers in treatment settings (see, e.g., Khanzian & Treece, 1985; Marlowe, Husband, Bonieskie, Kirby, & Platt, 1997; Marlowe, Husband, Lamb, Kirby, Iguchi, & Platt, 1995; Mirin, Weiss, & Michael, 1988; Ross, Glaser, & Germanson, 1988; Rounsaville, Weissman, & Kleber, 1982). These syndromes have substantial prognostic utility for predicting treatment response and the likelihood of future criminal recidivism. Major depression, for example, has been associated with a more favorable substance abuse treatment outcome (see, e.g., Rounsaville, Dolinsky, Babor, & Meyer, 1987; Woody, McLellan, Luborsky, & O'Brien, 1985), whereas APD is associated with a more complicated substance use history and poorer treatment response (Longabaugh, Rubin, Malloy, Beattie, Cli ord, & Noel, 1994; Marlowe, Kirby, Festinger, Husband and Platt, 1997; Woody et al., 1985). The detection of these comorbid syndromes might, therefore, weigh heavily in the prediction of a defendant's likely response to rehabilitation and, thus, may have particular relevance for sentencing and related dispositions. Perhaps the most telling characteristic of a defendant is his or her speci c reaction(s) to the crime in question. Meloy's (1988) distinction between ``a ective'' and ``predatory'' criminal behavior may be instructive in this regard. ``A ective'' violence is characterized by intense autonomic arousal, subjective experience of fear, di use sensory awareness, and spontaneous e orts to avoid or reduce a perceived threat. Perhaps most discriminating, persons who engage in a ective violence commonly nd the acting out to be ``ego-dystonic'' or threatening to their

210 D. B. Marlowe et al. self-esteem. ``Predatory'' violence, on the other hand, is characterized by minimal arousal, heightened sensory awareness, and enhanced self-esteem. Thus, apparent feelings of pride or satisfaction about the act, or the absence of a ``catastrophic'' reaction (e.g., shame, anxiety) to a violent outburst, may be indicators of premeditated conduct. As noted, however, there are presently insu cient data available to construct a reliable behavioral pro le of individuals who commit criminal acts due, solely or predominantly, to acute intoxication. Courts and experts may be advised, therefore, to focus on the circumstances of the o ense itself, as well as on the psychopharmacological e ects of the substance(s) in question, when evaluating a voluntary intoxication defense. CONCLUSION In Montana v. Egelho (1996), the United States Supreme Court held that a criminal defendant does not have a fundamental right to introduce evidence of voluntary intoxication in his or her defense. Although this decision undoubtedly signals an increasing judicial antagonism toward intoxication claims, evidence of voluntary intoxication continues to be received in the majority of jurisdictions, particularly on issues related to mens rea and sentencing mitigation. In addition, although it is beyond the scope of this paper, a substantial number of jurisdictions are developing ``drug courts'' and other alternative correctional programs to divert non-violent, non-recidivist substance abusing o enders from the jurisdiction of the criminal court (see, e.g., Marlowe & Kirby, 1999; National Association of Drug Court Professionals, 1997). Unfortunately, despite the potential utility of intoxication evidence, relatively few forensic evaluators possess the knowledge, experience, or inclination to develop this evidence in their criminal responsibility evaluations (cf. Watterson, 1991). In practice, many forensic examiners include only a few substance abuse questions in their screening inventory, and they may fail to follow up on negative responses to these questions despite the fact that many substance abusers blandly deny usage at the rst inquiry. Further, many evaluators render overly broad or potentially misleading diagnoses such as ``poly-substance dependence,'' ``poly-substance abuse,'' or ``mixed substance abuse.'' The rst term is meant to capture compulsive, but indiscriminate, use of at least three classes of psychoactive substances (excluding nicotine), while the latter two terms have no o cial diagnostic status (American Psychiatric Association, 1994). Yet, evaluators often employ these terms to convey vague information, such as the fact that the subject has used di erent drugs at di erent times. Substance abuse is the most common behavioral syndrome in forensic and correctional settings. Indeed, the shared variance between substance abuse and crime is so high that, from a purely statistical standpoint, there may even be little justi cation for treating them as wholly distinct phenomena. Forensic experts must therefore be more sensitized to substance abuse issues. At a minimum, it should be clear that one cannot perform a competent clinical forensic examination without closely attending to these matters.

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Jurisdiction As a mens rea defense As a basis for insanity APPENDIX In non-capital sentencing Alabama To negate general intent No Yes 1 Ala. Code } 13A-3-2 (1996); Smith v. State, 646 So.2d 704 (Ala. 1994); Kuenzel v. State, 577 So.2d 474 (Ala. Crim. App. 1990), a 'd sub nom Ex parte Kuenzel, 577 So.2d 531 (Ala. 1991); Ala. Rules Crim. Proc. Rule 26.6 (1998). Alaska To negate general intent No No Alaska Stat. }} 11.81.630, 12.22.155(g) (1997); Evans v. State, 645 P.2d 155 (Alaska 1982); Wright v. State, 656 P.2d 1226 (Alaska Ct. App. 1983). Arizona No No Yes 2 Ariz. Rev. Stat. }} 13-502, 13-503, 13-702 (1997); State v. Jones, 937 P.2d 310 (Ariz. 1997); State v. Marquez, 617 P.2d 787 (Ariz. Ct. App. 1980). Arkansas No No No Ark. Code. Ann. } 5-2-207 (Repl. 1993). California To negate speci c intent Chronic abuse; settled insanity Yes 2 Cal, Penal Code } 22 (West 1997); People v. Skinner, 228 Cal.Rptr. 652 (Cal. Ct. App. 1986); People v. Visciotti, 825 P.2d 388 (Cal. 1992); Cal. Rules of Court Rule 423 (1998). Colorado To negate speci c intent No * Colo. Rev. Stat. Ann. } 18-1-804 (West 1997). Connecticut To negate general intent No * Conn. Gen. Stat. Ann. }} 53a-7, 53a-13 (West 1996). Delaware No No * Del. Code Ann. tit. 11 }} 421, 422 (1997); Flamer v. State, 490 A.2d 104 (Del. 1984). District of Columbia To negate speci c intent Chronic abuse; settled insanity * Washington v. U.S., 689 A.2d 568 (D.C. 1997); Salzman v. U.S., 405 F.2d 358 (D.C. Cir. 1968); Jones v. U.S., 327 F.2d 867 (D.C. Cir. 1963). Florida To negate general intent Chronic abuse; settled insanity No Florida Standard Jury Instructions in Criminal Cases } 3.04(g) (1998); Fla. Stat. Ann. }} 921.141, 921.0026 (West 1997); Brunner v. State, 683 So.2d 1129 (Fla. 1996); Parker v. State, 643 So.2d 1032 (Fla. 1994). Georgia No No * Ga. code Ann. } 16-3-4 (1997); Wells v. Georgia, 279 SE.2d 213 (Ga. 1981); Romine v. State, 350 S.E.2d 446 (Ga. 1986). Hawaii No No * Haw. Rev. Stat. } 702-230 (1997); State v. Souza, 813 P.2d 1384 (Haw. 1991). Citations 214 D. B. Marlowe et al.