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8.1-4 Affirmative Defense of Drug Dependency
Revised to December 1, 2007
Note: This affirmative defense is available when the defendant is charged under § 21a-278, Instruction 8.1-2, or § 21a-278a (a), Instruction 8.1-3.
The statute allows the defendant to raise the affirmative defense that (he/she) is drug-dependent.
<Insert Affirmative Defense, Instruction 2.9-1.>
A "drug-dependent person" is defined by law as "a person who has a psychoactive substance dependence on drugs as that condition is defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association." "Drug dependence" is defined by law to be "a psychoactive substance dependence on drugs as that condition is defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association." It is the current standard that must be applied in determining the question of drug dependency.
<Insert the current criteria from the most recent edition of the DSM.>
<Substitute for the conclusion in the offense instruction:>
Conclusion
In summary, the state must prove beyond a reasonable doubt that <summarize elements of offense.>
If you unanimously find that the state has failed to prove beyond a reasonable doubt any of the elements of the crime of <insert name of offense>, you shall then find the defendant not guilty and not consider (his/her) affirmative defense.
If you unanimously find that the state has proved beyond a reasonable doubt each of the elements, then you shall consider the defendant's affirmative defense. If you unanimously find that the defendant has proved by a preponderance of the evidence that (he/she) was drug-dependent at the time of the offense, then you shall find the defendant not guilty. If you unanimously find that the defendant has not proved by a preponderance of the evidence that (he/she) was drug-dependent at the time of the offense, then you shall find the defendant guilty.
Commentary
"[A] person charged with sale of narcotics pursuant to § 21a-278 (b) is presumed not to have been drug-dependent, but may avoid liability under § 21a-278 (b) by proving by a preponderance of the evidence that he was drug-dependent at the time of the offense." State v. Jenkins, 41 Conn. App. 604, 609 (1996); see also State v. Hart, 221 Conn. 595, 607-11 (1992). The trial court must instruct the jury on the statutory definition of drug dependency. State v. Cotton, 69 Conn. App. 505 (2002); State v. Marrero, 66 Conn. App. 709, 724 (2001). See also State v. Stewart, 77 Conn. App. 393, cert. denied, 265 Conn. 906 (2003) (discussing evidence of drug dependency).
A defendant may be convicted under
both § 21a-277 and § 21a-278; the court should clarify that the defense of drug
dependency applies only to the charges under § 21a-278. State v. Little,
54 Conn. App. 580, 583 (1999).