The ‘Diminished Capacity’ Defense Based on Voluntary Intoxication in West Virginia Criminal Cases – State v. Pustovarh

West Virginia law allows a person charged with a crime to defend the charge by asserting that his or her mental capacity was so diminished that the person couldn’t have had the criminal intent necessary to be convicted of the crime at the time it took place. This “diminished capacity” defense, in some cases, includes diminished capacity related to a person’s voluntary intoxication by drugs and alcohol. In a recent case, the West Virginia Supreme Court explained the type of evidence that a person seeking to assert that particular brand of the defense has to provide.

the-last-drop-1083566-m.jpgMr. Pustovarh was indicted in November 2012 on charges of malicious assault and domestic battery. The charges stemmed from an incident five months earlier in which Pustovarh allegedly engaged in domestic violence against his girlfriend. Prior to trial, Pustovarh’s lawyer made clear that he intended to fight the charges on the ground that Pustovarh was drunk at the time of the incident and his decision-making capacity was therefore diminished. Although the trial court delayed the trial so that Pustovarh could obtain an expert to testify on diminished capacity, he failed to do so within a court-issued deadline. As a result, the court said the defense wouldn’t be available to Pustovarh at trial.

When the trial closed in April 2013, the judge also declined Pustovarh’s request that the jury be instructed about the diminished capacity defense and its possible application to the case. Pustovarh was found guilty on both charges and sentenced to up to 10 years in prison.

Affirming the decision on appeal, the Supreme Court said the lower court didn’t abuse its discretion in declining to provide the diminished capacity jury instruction. “Instructions must be based upon the evidence and an instruction which is not supported by evidence should not be given,” the Court said, citing its 1971 decision in a case called State v. Collins. “In this matter, it is clear that petitioner failed to establish an evidentiary basis for an instruction on the defense of diminished capacity and/or voluntary intoxication,” the Court held.

Specifically, the Court explained that a criminal defendant can take advantage of the diminished capacity defense only when he or she introduces expert evidence in support of the defense. Perhaps more importantly, the Court said a defendant claiming diminished capacity due to voluntary intoxication has to show that he or she was so intoxicated that it left the person “incapable . . . of acting with malice, premeditation or deliberation.”

Although Pustovarh said he drank several quarts of a highly alcoholic beverage before the incident, the Court noted that he also admitted that he was not so drunk that he didn’t know what he was doing. He further acknowledged that the argument that led to the altercation began before he started drinking. “[T]he Court finds no abuse of discretion in the circuit court’s determination that petitioner failed to establish an evidentiary basis for the jury instruction he proposed,” it concluded.

It’s important that a person facing criminal charges seek the counsel of an experienced criminal defense attorney. The West Virginia criminal defense lawyers at the Wolfe Law Firm have been serving clients throughout the state for more than 25 years. Call us at 1-877-637-5756 or contact us online for a free consultation.

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