General Provisions

ORS 161.125
Drug or controlled substance use or dependence or intoxication as defense


(1)

The use of drugs or controlled substances, dependence on drugs or controlled substances or voluntary intoxication shall not, as such, constitute a defense to a criminal charge, but in any prosecution for an offense, evidence that the defendant used drugs or controlled substances, or was dependent on drugs or controlled substances, or was intoxicated may be offered by the defendant whenever it is relevant to negative an element of the crime charged.

(2)

When recklessness establishes an element of the offense, if the defendant, due to the use of drugs or controlled substances, dependence on drugs or controlled substances or voluntary intoxication, is unaware of a risk of which the defendant would have been aware had the defendant been not intoxicated, not using drugs or controlled substances, or not dependent on drugs or controlled substances, such unawareness is immaterial. [1971 c.743 §11; 1973 c.697 §13; 1979 c.744 §6]

Notes of Decisions

Under Former Similar Statute (Ors 136.400)

Where intoxication was pleaded only to negative specific intent, it did not have to be proved by preponderance of evidence. State v. Smith, 260 Or 349, 490 P2d 1262 (1971)

It was not necessary to show that intoxication produced "diseased" mind or insanity to negative specific intent. State v. Smith, 260 Or 349, 490 P2d 1262 (1971)

In General

Where defendant denied he was intoxicated, evidence that he had been drinking, without more specific information as to amount, time and effect, was insufficient to raise an issue of intoxication. State v. Oliver, 13 Or App 324, 509 P2d 41 (1973)

Absence of statutory word "negative" in jury instructions with reference to defense of voluntary intoxication was not error. State v. Henson, 23 Or App 234, 541 P2d 1085 (1975)

Voluntary intoxication "as such" means voluntary intoxication by itself. State v. Peverieri, 192 Or App 229, 84 P3d 1125 (2004), Sup Ct review denied

"Element of the crime charged" refers to component of state's prima facie case, not component of defense. State v. Bassett, 234 Or App 259, 228 P3d 590 (2010), Sup Ct review denied

§§ 161.085 to 161.125

Law Review Citations

51 OLR 427, 437, 459 (1972); 29 WLR 829 (1993)

Chapter 161

Notes of Decisions

A juvenile court adjudication of whether or not a child committed acts which would be a criminal violation if committed by an adult must necessarily include an adjudication of all affirmative defenses that would be available to an adult being tried for the same criminal violation. State ex rel Juvenile Dept. v. L.J., 26 Or App 461, 552 P2d 1322 (1976)

Law Review Citations

2 EL 237 (1971); 51 OLR 427-637 (1972)

Chapter 161

Criminal Code

(Generally)

Notes of Decisions

Legislature's adoption of 1971 Criminal Code did not abolish doctrine of transferred intent. State v. Wesley, 254 Or App 697, 295 P3d 1147 (2013), Sup Ct review denied


Source

Last accessed
Jun. 26, 2021