OPINION
HOWARD, Judge.Appellant was found guilty by a jury of violating A.R.S. § 13-1802(A)(5) which provides:
“A. A person commits theft if, without lawful authority, such person knowingly:
******
5. Controls property of another knowing or having reason to know that the property was stolen; ...” (Emphasis added)
Appellant was apprehended by the police in a stolen automobile. The arresting officer testified that appellant was intoxicated. At trial, appellant requested the trial court, pursuant to A.R.S. § 13-503, to instruct the jury that it could consider the fact of his intoxication in determining whether he committed the crime “knowingly”. The trial court refused. Citing our case of State v. Robles, 128 Ariz. 89, 623 P.2d 1245 (1981), appellant contends the trial court erred in refusing his instruction. We agree the trial court erred, but not for the reason asserted by appellant.
Prior to April 23, 1980, A.R.S. § 13-503 stated:
“No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition, but when the actual existence of any particular culpable mental state is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time in determining the culpable mental state with which he committed the act.” (Emphasis added)
*13A.R.S. § 13-105(5) states that the phrase “culpable mental state” encompasses, inter alia, “intentionally” and “knowingly”. The word “knowingly” is defined in subpara-graph b as meaning:
“. . . [W]ith respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that his or her conduct is of that nature or that the circumstance exists.”
The trial court refused the instruction because A.R.S. § 13-503 was amended prior to the commission of the instant offense. The new statute reads:
“No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition, but when the actual existence of the culpable mental state of intentionally or with the intent to is a necessary element to constitute any particular species or degree of offense, the jury may take into consideration the fact that the accused was intoxicated at the time in determining the culpable mental state with which he committed the act.” (Emphasis added)
We believe A.R.S. § 13-503, as amended, violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution by relieving the state of the necessity of proving an element of the crime charged.
The due process clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Where the criminal statute involved requires a certain state of mind such as “malice” or “purposely or knowingly”, the state cannot shift the burden of proving these states of mind to the defendant. See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). A fortiori, it cannot eliminate the necessity for proving a state of mind essential to the commission of the crime.
The state here must prove that the crime was committed “knowingly”. However, it is not necessary to do so if the accused is intoxicated because A.R.S. § 13-503 does not apply to crimes where the required state of mind is “knowingly”. It is therefore obvious that the statute is unconstitutional.
The dissent opines that since the state still has the burden of proving the act was done “knowingly”, there is no constitutional infirmity. We are unable to agree. If intoxication cannot be used to show the accused did not act with the required culpable state of mind, then any evidence of intoxication would be inadmissible, and if such evidence were introduced, the state would be entitled to an instruction that such evidence cannot be considered by the jury. The jury could thus convict an accused who was too intoxicated to knowingly commit the crime. To say that the state still has the burden of proving the issue of knowledge is a “Catch 22”.
In view of our disposition of this matter, we need not discuss the other issue appellant has presented for review.
Reversed and remanded for new trial.
BIRDSALL, J., concurs.