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Offer of Proof — Involuntary Intoxication — Need to Distinguish Right from Wrong

State v. David J. Gardner, 230 Wis. 2d 32, 601 N.W.2d 670 (Ct. App. 1999)
For Gardner: Steven P. Weiss, SPD, Madison Appellate

Holding: Gardner attempted to raise an involuntary intoxication defense, § 939.42(1), based on the effects of prescription medication. The trial court heard his offer of proof and barred his expert (psychiatrist) from testifying. Unlike voluntary intoxication, involuntary intoxication doesn’t negate intent; it instead renders the actor incapable of distinguishing right from wrong, akin to the test for insanity. The trial court therefore erred in applying State v. Flattum, 122 Wis. 2d 282, 361 N.W.2d 705 (1985) (diminished capacity) to bar Gardner’s expert from testifying. The effects of prescription medicine can, the court holds, form the basis for an involuntary intoxication defense, whether or not the defendant knows of its potential effect. Nonetheless, the offer of proof was still deficient because it didn’t establish that Gardner couldn’t distinguish right from wrong.

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