Can a defense of unconsciousness from intoxication be raised in a second degree implied malice murder case?

California, United States of America


The following excerpt is from People v. Ferguson, G043190, Super. Ct. No. 09ZF0054 (Cal. App. 2011):

Even were we to agree there are circumstances in second degree implied malice murder drunk driving case in which a defense of unconsciousness from voluntary intoxication can be raised, this would not be such a case. A trial court is required to instruct "on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support." (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).)

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