CALCRIM No. 3426. Voluntary Intoxication (Pen. Code, § 29.4)
Judicial Council of California Criminal Jury Instructions (2025 edition)
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3426.Voluntary Intoxication (Pen. Code, § 29.4)
You may consider evidence, if any, of the defendant’s voluntary
intoxication only in a limited way. You may consider that evidence only
in deciding whether the defendant acted [or failed to do an act] with
<insert specific intent or mental state required, e.g., “the intent
to permanently deprive the owner of his or her property” or “knowledge that
. . .” or “the intent to do the act required”>.
A person is voluntarily intoxicated if he or she becomes intoxicated by
willingly using any intoxicating drug, drink, or other substance knowing
that it could produce an intoxicating effect, or willingly assuming the
risk of that effect.
In connection with the charge of <insert first charged offense
requiring specific intent or mental state>,the People have the burden of
proving beyond a reasonable doubt that the defendant acted [or failed to
act] with <insert specific intent or mental state required, e.g.,
“the intent to permanently deprive the owner of his or her property” or
“knowledge that . . .”>. If the People have not met this burden, you
must find the defendant not guilty of <insert first charged
offense requiring specific intent or mental state>.
<Repeat this paragraph for each offense requiring specific intent or a
specific mental state.>
You may not consider evidence of voluntary intoxication for any other
purpose. [Voluntary intoxication is not a defense to <insert
general intent offense[s]>.]
New January 2006; Revised August 2012, August 2013, February 2015, March
2019, September 2024*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
The court has no sua sponte duty to instruct on voluntary intoxication; however, the
trial court must give this instruction on request. (People v. Ricardi (1992) 9
Cal.App.4th 1427, 1432 [12 Cal.Rptr.2d 364]; People v. Castillo (1997) 16 Cal.4th
1009, 1014 [68 Cal.Rptr.2d 648, 945 P.2d 1197]; People v. Saille (1991) 54 Cal.3d
1103, 1119 [2 Cal.Rptr.2d 364, 820 P.2d 588].) Although voluntary intoxication is
not an affirmative defense to a crime, the jury may consider evidence of voluntary
intoxication and its effect on the defendant’s required mental state. (Pen. Code,
§ 29.4; People v. Reyes (1997) 52 Cal.App.4th 975, 982-986 [61 Cal.Rptr.2d 39]
[relevant to knowledge element in receiving stolen property]; People v. Mendoza
2229
(1998) 18 Cal.4th 1114, 1131-1134 [77 Cal.Rptr.2d 428, 959 P.2d 735] [relevant to
mental state in aiding and abetting].)
Voluntary intoxication may not be considered for general intent crimes. (People v.
Mendoza, supra, 18 Cal.4th at pp. 1127-1128; People v. Atkins (2001) 25 Cal.4th
76, 81 [104 Cal.Rptr.2d 738, 18 P.3d 660]; see also People v. Hood (1969) 1 Cal.3d
444, 451 [82 Cal.Rptr. 618, 462 P.2d 370] [applying specific vs. general intent
analysis and holding that assault type crimes are general intent; subsequently
superseded by amendments to former Penal Code section 22 [now Penal Code
section 29.4] on a different point].)
If both specific and general intent crimes are charged, the court must specify the
general intent crimes in the bracketed portion of the last sentence and instruct the
jury that voluntary intoxication is not a defense to those crimes. (People v. Aguirre
(1995) 31 Cal.App.4th 391, 399-402 [37 Cal.Rptr.2d 48]; People v. Rivera (1984)
162 Cal.App.3d 141, 145-146 [207 Cal.Rptr. 756].)
If the defendant claims unconsciousness due to involuntary intoxication as a defense
to driving under the influence, see People v. Mathson (2012) 210 Cal.App.4th 1297,
1317-1323 [149 Cal.Rptr.3d 167].
The court may need to modify this instruction if given with CALCRIM No. 362,
Consciousness of Guilt. (People v. Wiidanen (2011) 201 Cal.App.4th 526, 528, 533
[135 Cal.Rptr.3d 736].)
Evidence of voluntary intoxication is inadmissible on the question of whether a
defendant believed it necessary to act in self-defense. (People v. Soto (2018) 4
Cal.5th 968, 970 [231 Cal.Rptr.3rd 732, 415 P.3d 789].)
Related Instructions
CALCRIM No. 3427, Involuntary Intoxication.
CALCRIM No. 625, Voluntary Intoxication: Effects on Homicide Crimes.
CALCRIM No. 626, Voluntary Intoxication Causing Unconsciousness: Effects on
Homicide Crimes.
AUTHORITY
• Instructional Requirements. Pen. Code, § 29.4; People v. Castillo, supra, 16
Cal.4th at p. 1014; People v. Saille, supra, 54 Cal.3d at p. 1119 .
• Effect of Prescription Drugs. People v. Mathson, supra, 210 Cal.App.4th at p.
1328, fn. 32.
CALCRIM No. 3426 DEFENSES AND INSANITY
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RELATED ISSUES
Implied Malice
“[E]vidence of voluntary intoxication is no longer admissible on the issue of implied
malice aforethought.” (People v. Martin (2000) 78 Cal.App.4th 1107, 1114-1115 [93
Cal.Rptr.2d 433], quoting People v. Reyes, supra, 52 Cal.App.4th at p. 984, fn. 6.)
Intoxication Based on Mistake of Fact Is Involuntary
Intoxication resulting from trickery is not “voluntary.” (People v. Scott (1983) 146
Cal.App.3d 823, 831-833 [194 Cal.Rptr. 633] [defendant drank punch not knowing
it contained hallucinogens; court held his intoxication was result of trickery and
mistake and involuntary].)
Premeditation and Deliberation
“[T]he trial court has no sua sponte duty to instruct that voluntary intoxication may
be considered in determining the existence of premeditation and deliberation.”
(People v. Hughes (2002) 27 Cal.4th 287, 342 [116 Cal.Rptr.2d 401, 39 P.3d 432],
citing People v. Saille, supra, 54 Cal.3d at p. 1120; see People v. Castillo, supra, 16
Cal.4th at p. 1018 [counsel not ineffective for failing to request instruction
specifically relating voluntary intoxication to premeditation and deliberation].)
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. Heffıngton (1973) 32 Cal.App.3d 1, 8 [107
Cal.Rptr. 859].) Unconsciousness caused by voluntary intoxication is governed by
Penal Code section 29.4, rather than by section 26 and may only be offered to
negate specific intent. (People v. Suazo (2023) 95 Cal.App.5th 681, 703-704 [313
Cal.Rptr.3d 649] [no error in refusing to instruct on unconsciousness resulting from
voluntary intoxication in gross vehicular manslaughter and fleeing-the-scene
allegations]; 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]; see also People v.
Ochoa (1998) 19 Cal.4th 353, 423 [79 Cal.Rptr.2d 408, 966 P.2d 442] [“if the
intoxication is voluntarily induced, it can never excuse homicide. Thus, the requisite
element of criminal negligence is deemed to exist irrespective of unconsciousness,
and a defendant stands guilty of involuntary manslaughter if he voluntarily procured
his own intoxication [citation].”].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 32-39.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.04 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 124,
Jurisdiction and Disposition Hearings, § 124.04 (Matthew Bender).
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© Judicial Council of California.
