The Oklahoma Court of Criminal Appeals emphasized in Malone v. State, 2007 OK CR 34, ¶ 29, 168 P.3d 185, 198, the duty of the trial court to tailor this instruction to the particular case by filling in the specific criminal intent at issue in place of the bracketed language. For example, where voluntary intoxication is raised as a defense to first-degree murder, the trial court should substitute "malice aforethought" for the bracketed language of "[Insert Specific Intent Required By the Statute]." Alternatively, a trial court could substitute "a deliberate intent to kill" for the bracketed language, because malice aforethought is defined as a deliberate intent to kill. Id. ¶ 30.

In contrast with several other defenses, insanity, for example, the defense of voluntary intoxication is primarily a mitigating, as opposed to an exculpating, defense. Voluntary intoxication is available as a defense only when the crime with which the defendant is charged has as its mens rea element a specific criminal intent. See Jones v. State, 1982 OK CR 112, ¶ 13, 648 P.2d 1251 , 1255 ("Stated simply, voluntary intoxication is no defense to a crime, except to the extent that the intoxication rendered the defendant incapable of forming the necessary mental element."). Voluntary intoxication is relevant to disprove the existence of a specific criminal intent and thereby the commission of the crime, but voluntary intoxication does not excuse the defendant from criminal liability for a lesser included offense which does not have such a mens rea requirement. As stated in R. Perkins, Criminal Law 889 (2d ed. 1969), "voluntary drunkenness is no excuse for an actus reus."

The above interpretation is that which the Court of Criminal Appeals has given to 21 O.S. 2001, § 153. Huffman v. State, 1923 OK CR 251, 217 P. 1070, 24 Okl. Cr. 292. Moreover, the court has interpreted 21 O.S. 2001, § 704, to mean that a homicide is not automatically mitigated simply because of intoxication. As long as the homicide was committed with "malice aforethought," the crime is murder even though the defendant was drunk. However, if intoxication prevented the formation of the required specific intent to kill, then under section 153 intoxication would be a mitigating defense, and the defendant would be punishable for any appropriate lesser included offense. 21 O.S. 2001 & Supp. 2009, §§ 701.7, 701.8, 711.

The Court of Criminal Appeals has specifically ruled that the defense of intoxication is available in murder cases. Perryman v. State, 1916 OK CR 76, 159 P. 937, 12 Okl. Cr. 500. See also Couch v. State, 1962 OK CR 130, 375 P.2d 978 (second degree burglary); Gower v. State, 1956 OK CR 49, 298 P.2d 461  (larceny of automotive driven vehicles); Kerr v. State, 1954 OK CR 131, 276 P.2d 284  (larceny of domestic animals); Walker v. State, 1951 OK CR 9, 226 P.2d 998, 93 Okl. Cr. 251; Huffman, supra; Cheadle v. State, 1915 OK CR 59, 149 P. 919, 11 Okl. Cr. 566, (murder). Voluntary intoxication should be available as a defense, however, as to any crime that has a specific criminal intent as the mens rea requirement.

Voluntary intoxication is not a defense to the crime of rape, because rape does not have a specific criminal intent mens rea requirement. Boyd v. State, 1977 OK CR 322, 572 P.2d 276 ; Kitch v. State, 1937 OK CR 99, 69 P.2d 411, 61 Okl. Cr. 435, 446. Voluntary intoxication is not a defense to a crime having a general mens rea requirement, such as criminal negligence. R. Perkins, Criminal Law 900 (2d ed. 1969).

It seems appropriate at this point to emphasize that insanity and voluntary intoxication are separate defenses, although both defenses may involve the effect of alcohol upon a person's mental abilities. Several cases have seemingly confused the two defenses. Couch v. State, supra; Myers v. State, 1946 OK CR 109, 174 P.2d 395, 83 Okl. Cr. 177.

As stated above, voluntary intoxication is only a defense to a crime which has a specific mens rea as an element of the crime. The defendant is permitted to introduce evidence that his drunken state made it impossible for him to have formed the specific mens rea required. If the evidence indicates that the drunkenness prevented the defendant from forming the specific mens rea necessary, then that element of the crime has not been established and, as a consequence, the crime itself has not been proved. Since the defendant was only in a temporary state of drunkenness, probably voluntarily induced, he is still subject to criminal liability for lesser included offenses contained within the crime charged. The defendant is still held accountable for these lesser included offenses which do not have a specific mens rea as an element. In effect, the defendant claims that drunkenness prevented formation of the necessary mens rea of the crime charged, but does not claim that his mental faculties have been destroyed. Voluntary intoxication is, therefore, primarily a mitigating defense; i.e., it prevents conviction for certain crimes but does not entirely exculpate the defendant from criminal liability.

Insanity, by contrast, is an exculpating defense. If a defendant can present evidence which establishes that he/she was insane during the commission of the criminal act(s), the defendant is entirely free from criminal liability. The defendant claims that he/she is not accountable to the criminal law because his/her mental faculties were destroyed to such an extent that he cannot know right from wrong. The defendant claims that he/she was incapable of forming any mental state concerning the rightness or wrongness of his actions because of insanity at the time of the alleged crime.

Insanity may be brought about by numerous conditions, including chronic intoxication. A person can use alcohol so excessively and so continuously that eventually the alcohol destroys the mental faculties of the alcoholic. This condition, known as delirium tremens, thus serves as the underlying cause of insanity. When the defendant claims that his mental faculties have been destroyed by delirium tremens, the appropriate defense is the defense of insanity, not the defense of voluntary intoxication. Mott v. State, 1951 OK CR 68,  232 P.2d 166, 94 Okl. Cr. 145, 157.

(2010 Supp.)