N.J. Model Criminal Jury Charge, N.J.S.A. 2C:2-8b

Approved 2/27/89

EFFECT OF INTOXICATION ON JURY'S CONSIDERATION OF

LESSER OFFENSES INVOLVING RECKLESSNESS1

(N.J.S.A. 2C: 2-8b)

I have already explained that ev idence that the defendant ingested [intoxicant(s)] may

be considered by you in determining whethe r the State has proven beyond a reasonable doubt

that the defendant acted purposely or knowingly with resp ect to the offense(s) of offense(s)

requiring purpose or knowledge to which intoxication defense applies) .

I have also explained that if you find th e State has failed to pr ove beyond a reasonable

doubt that the defendant acted with purpose or knowledge, you must go on to consider whether

the State has proven beyond a reasonable doubt the elements of (lesser included offense(s)

requiring reckless mental state) .

In determining whether the State has pr oven that the defendant acted recklessly, 2 you are

not to consider whether the defendant's use of [intoxicant(s)] prevented him/her from

consciously disregarding a substantial and unjustifiable risk. You are not to consider whether the

use of [intoxicant(s)] made the defendant unaware of a risk of which he/she would have

been aware if he/she had been sober. In other words, the St ate does not have to prove that the

defendant was, in fact, aware of the risk. Rath er the State need only prove that the defendant

would have been aware of the risk if he/she has been sober at the time of the offense. This

means that if you find that the defendant was intoxicated, you are not to consider his/her actual

intoxicated mental state in determining whether he/she acted recklessly. Instead, you are to view

defendant's conduct as if he/she had been sober, and determine whether he/she would have been

aware of a risk of such a nature and degree that, considering the nature and purpose of the

defendant's conduct and the circumstances that would have been known to him/her had he/she

been sober, the disregarding of such risk involved a gross deviation from the standard of conduct

that a reasonable person would observe in the defendant's situation.3

1 The language of this charge is taken directly from State v. Warren, 104 N.J. 571, 577, 578 (1986).

Placement of this charge will depend on the facts of the case. For example, in a murder case, if aggravated

manslaughter and manslaughter are appropriate lesser included offenses irrespective of the introduction of

intoxication evidence, the basic 2C:2-8a self-induced intoxication charge might appropriately be placed after the

charges on murder, aggravated manslaughter and manslaughter, with this charge placed directly after the 2C:2-8a

self-induced charge. If, however, the so le basis for submitting the lesser incl uded offenses is the evidence of

intoxication, the 2C:2-8a self-induced in toxication charge should be placed afte r the murder charge but before the

charges on aggravated manslaughter and manslaughter and this charge sh ould be placed after the aggravated

manslaughter and manslaughter instructions.

2 It is presumed that recklessness ha s already been explained to the jury.

3 See N.J.S.A. 2C:2-2b(3).