dissenting:
The majority upholds the judgment of conviction in this case based on its conclusion that “settled insanity” does not constitute a valid defense to a criminal charge because a recognition of that defense would conflict with statutory provisions that limit the use of intoxication as a defense, see § 18-1-804, 8B C.R.S. (1986), and would contravene its view of our public policy. Maj. op. at 815-16. Not only do I disagree that by that statute the General Assembly has precluded settled insanity from constituting a defense but I believe that under the dictates of due process the trial court was constitutionally obligated to instruct the jury on that defense, as the defendant requested. Accordingly, and in agreement with many of the arguments presented by Judge Dubofsky in his dissent in People v. Bieber, 835 P.2d 542, 548-51 (Colo.App.1992) (Dubofsky, J., dissenting),1 I dissent from the majority opinion and conclude in contrast that the defendant’s convictions for first-degree murder, aggravated robbery, and second-degree aggravated motor vehicle theft should be reversed and that this case should be remanded for a new trial on the sanity issue.
A fundamental tenet of our system of justice is that a person may not be held criminally responsible for actions performed while insane. See § 18-1-802, 8B C.R.S. (1986); Ingles v. People, 92 Colo. 518, 522, 22 P.2d 1109, 1111 (1933). This is because at some point a person’s mind may be so impaired by disease or defect that he is incapable of entertaining criminal intent. See Ryan v. People, 60 Colo. 425, 427, 153 P. 756, 759 (1915). The General Assembly has determined, however, and we have accordingly held, that although a person may become temporarily incapacitated by the use of alcohol or drugs, voluntary intoxication does not constitute an affirmative defense to a crime and may be used only to negate specific intent when that intent is an element of the crime charged. See § 18-1-804(1); Hendershott v. People, 653 P.2d 385, 396 (Colo.1982), cert. denied, 459 U.S. 1225, 103 S.Ct. 1232, 75 L.Ed.2d 466 (1983); People v. DelGuidice, 199 Colo. 41, 45, 606 P.2d 840, 843 (1979). In the present case, the defendant did not contend that his conduct should be excused on the basis that he was intoxicated at the time he *819committed the offenses. Rather, he asserted that he should not be held accountable for his actions because he was legally insane2 at the time. Because he claimed that his insanity was the result of a long-continued use of amphetamines, the defendant requested an instruction to inform the jury that the cause of the condition was immaterial as long as the insanity was settled.3
The defendant’s proffered instruction rests on a distinction between an intoxicated condition caused by the voluntary ingestion of alcohol or drugs at or near the time of an offense and a mental condition4 that exists independent of current use and results from a previous long-term consumption of such substances. The California Supreme Court described this distinction and the rationale for affording it different legal consequences in People v. Kelly, 10 Cal.3d 565, 111 Cal.Rptr. 171, 178, 516 P.2d 875, 882 (1973), stating that in the former situation the “mental impairment does not extend beyond the period of intoxication,” but in the latter, when long-term intoxication results in insanity,
the mental disorder remains even after the effects of the drug or alcohol have worn off. The actor is “legally insane,” and the traditional justifications for criminal punishment are inapplicable because of his inability to conform ... to accepted social behavior.
The Maryland Court of Appeals has characterized the distinction as “ ‘one between the direct results of drinking, which are voluntarily sought after, and its remote and undesired consequences.’ ” Porreca v. State, 49 Md.App. 522, 433 A.2d 1204, 1207 (1981) (quoting Parker v. State, 7 Md.App. 167, 254 A.2d 381, 388 (1970)).
Thus, even though the direct and short-term consequence of the use of a drug or alcohol — the state of intoxication — will not provide an excuse for resultant conduct because the voluntary nature of the use of that substance to obtain its immediate effects supports holding that person responsible for his actions, when that use develops into a condition that meets the definition of insanity, our society has determined that there is no longer any justification for holding the person legally accountable. As stated by LaPave and Scott,
[t]he defense of intoxication is quite different from the defense of insanity, yet excessive drinking may bring on actual insanity ...; in such a case, if a defendant does not know right from wrong (in a M’Naghten test jurisdiction), he is not guilty of a crime because of his otherwise criminal conduct.
*820Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 410(g), at 395 (2d ed. 1986) (footnotes omitted).5
Although the majority recognizes this distinction in the case now before us, it declines to give it effect. In contrast to the majority’s position, I believe that when a person suffers from an actual disease or defect of the mind, regardless of whether it is attributable to prior alcohol or drug use, so that he meets the legal definition of insanity, and when that condition exists independent of any intoxicated state, any limitations on the ability to assert intoxication as a defense are inapplicable. See Kelly, 111 Cal.Rptr. at 178, 516 P.2d at 882 (“ ‘[Sjettled insanity produced by a long-continued intoxication, affects responsibility in the same way as insanity produced by any other cause.”) (quoting People v. Travers, 88 Cal. 233, 26 P. 88, 91 (1891)).
The validity and significance of the distinction between settled insanity and the immediate and transient effects resulting from ingestion of alcohol or other drugs are underscored by the wealth of authority from other jurisdictions that recognize the doctrine of settled insanity as a defense. See, e.g., Hooks v. State, 534 So.2d 329, 352-53 (Ala.Crim.App.1987), aff'd, 534 So.2d 371 (Ala.1988), cert. denied, 488 U.S. 1050, 109 S.Ct. 883, 102 L.Ed.2d 1005 (1989);6 O’Leary v. State, 604 P.2d 1099, 1103 (Alaska 1979), overruled on other grounds, Evans v. State, 645 P.2d 155, 160 n. 11 (Alaska 1982); People v. Kelly, 111 Cal.Rptr. at 178-79, 516 P.2d at 882-83; Cirack v. State, 201 So.2d 706, 709 (Fla.1967); State v. Clokey, 83 Idaho 322, 364 P.2d 159, 164 (1961); People v. Free, 94 Ill.2d 378, 69 Ill.Dec. 1, 14-15, 447 N.E.2d 218, 231-32, cert. denied, 464 U.S. 865, 104 S.Ct. 200, 78 L.Ed.2d 175 (1983); State v. James, 223 Kan. 107, 574 P.2d 181, 184-85 (1977); Porreca v. State, 49 Md.App. 522, 433 A.2d 1204, 1206-07 (1981); Commonwealth v. Ricard, 355 Mass. 509, 246 N.E.2d 433, 435-37 (1969); People v. Caulley, III, 197 Mich.App. 177, 494 N.W.2d 853, 858-59, 859 n. 3 (1992); State v. Preston, 673 S.W.2d 1, 8 (Mo.), cert. denied sub nom. Preston v. Missouri, 469 U.S. 893, 105 S.Ct. 269, 83 L.Ed.2d 205 (1984); Couch v. State, 375 P.2d 978, 980 (Okla.Crim.1962); State v. Hartfield, 300 S.C. 469, 388 S.E.2d 802, 804 (1990); Evilsizer v. State, 487 S.W.2d 113, 116-17 (Tex.Crim.App.1972); Arey v. Peyton, 209 Va. 370, 164 S.E.2d 691, 695 (1968); State v. Wicks, 98 Wash.2d 620, 657 P.2d 781, 782 (1983).
The majority recognizes this “substantial weight of precedent,” and presents no authority from any jurisdiction holding to the contrary. However, it declines to accept the settled insanity defense in Colorado on the basis that the doctrine is not reconcilable with the statutory scheme established by the General Assembly. Maj. op. at 815-16. Specifically, the majority points to the statutory limitations on the use of intoxication as a defense to criminal charges contained in section 18-1-804, and states that because “[the defendant’s] alleged ‘settled insanity’ resulted from his use of amphetamines, [it] may be regarded as an ‘intoxication’ ” under subsection (4) of that statute. Id. at 816. It then attempts to buttress its position by focusing on the voluntary nature of the defendant’s prior drug consumption and, contrary to the reasoning underlying the cases cited in the immediately preceding paragraph of this dissent, “[does] not see any qualitative difference between a person who drinks or *821takes drugs knowing that he or she will be momentarily ‘mentally defective’ as an immediate result, and one who drinks or takes drugs knowing that he or she may be ‘mentally defective’ as an eventual, long-term result.” Id. at 816. Based on the individual’s culpability in creating both conditions, it concludes as a matter of public policy that his actions ought not be excused. Id. at 816-17.
In contrast to the majority, I do not believe section 18-1-804 addresses the issue of settled insanity. The statute specifies that intoxication is not a defense to a criminal charge except as it may be relevant to negate specific intent. § 18 — 1— 804(1). It also makes clear that intoxication “does not, in itself, constitute mental disease or defect within the meaning of section 18-1-802 [the statute providing that an insane person is absolved from criminal responsibility].” The critical question, therefore, is the meaning of “intoxication.” That meaning is supplied by subsection (4) of section 18-1-804, as follows: “ ‘Intoxication’, as used in the section means a disturbance of mental or physical capacities resulting from the introduction of any substance into the body.” The majority reads this definition to include a disease or defect of mind of a continuing nature produced as a consequence of long-term substance abuse. See maj. op. at 816. Contrary to the majority, I do not find this to be a “straight-forward reading of the statute,” see id., but rather, find the language more naturally descriptive of a condition that is an immediate or short-term and transient consequence of the introduction of any substance into the body. Even more importantly, the phrase “a disturbance of mental or physical capacities” resulting from introduction of a substance into the body, § 18-1-804(4), could not have been intended to comprehend the profoundly more serious mental condition necessary to meet the definition of insanity: “so diseased or defective in mind ... as to be incapable of distinguishing right from wrong with respect to [the act in question].” § 16-8-101(1). Furthermore, as earlier noted, the interpretation of section 18-1-804 as not addressing settled insanity is strengthened by the fact that an abundance of authority from other jurisdictions recognized settled insanity as a defense in 1971 when section 18-1-804 was most recently amended. See ch. 121, sec. 1, § 40-1-904, 1971 Colo.Sess. Laws 388, 412. Adding to this the apparent lack of authority holding to the contrary at that time, it is evident that if the legislature intended to embark on the lonely course attributed to it by the majority, its intent to do so would have been expressed with utmost clarity.
The majority also relies on Hendershott v. People, 653 P.2d at 396, as supporting the rejection of settled insanity as a defense. In Hendershott, we contrasted mental impairment in the form of adult minimal brain dysfunction and self-induced intoxication as those mental conditions relate to the ability of an accused to form the mens rea for a general intent crime. We held that admission of evidence of adult minimal brain dysfunction was mandated by principles of due process of law because “[s]uch a condition will generally result from unconscious processes beyond the actor’s control.” Id. at 396. In contrast, we determined that evidence of self-induced intoxication was not admissible because the resultant “disturbance of mental or physical capacities [is] caused by substances knowingly introduced into the body, which the defendant knows or ought to know have the tendency to cause the resulting disturbance.” Id. (emphasis in original). The distinction, we held, was the basis for the legislative policy reflected in section 18-1-804, providing that self-induced intoxication is not a defense to a criminal charge. A close reading of Hendershott, however, makes clear that in discussing self-induced intoxication we were speaking not of a mental disease or impairment of the type described by the term “settled insanity” but of the short-term and transient disturbance closely following the ingestion of alcohol. This is made most clear in the following passage:
[W]hen a defendant chooses to knowingly introduce intoxicants into his body to the point of becoming temporarily impaired in his powers of perception, judg*822ment and control, the policy enunciated in [People v. DelGuidice, 199 Colo. 41, 606 P.2d 840 (1949),] prohibits him from utilizing his intoxication as a defense to crimes requiring the mens rea of “knowingly,” “willfully,” “recklessly,” or “with criminal negligence.”
Hendershott, 653 P.2d at 396 (emphasis added). I view settled insanity as more closely analogous to the brain dysfunction condition in Hendershott than to self-induced intoxication and would distinguish on that basis the condition that the defendant has alleged in this case from the definition of intoxication contained in section 18 — 1— 804(4).
Moreover, I also believe that the majority’s reading of that statute implicates the constitutionally guaranteed right to due process of law, US. Const, amend. XIV, and Colo. Const, art. II, § 25, and could cause the statute to operate in a manner that denies persons this right. In Hendershott, 653 P.2d at 392-93, we determined that due process requires that defendants be allowed to present reliable and relevant evidence of mental impairment to negate the culpability element of general intent crimes. Although we recognized that the legislature maintains the prerogative both to denominate and to limit the affirmative defenses that criminal defendants can invoke, we made clear that it may not do so in a manner that impairs such persons’ basic constitutional rights. Id. at 391. Thus, we refused to read the statutory provision that allows defendants to offer evidence of an impaired mental condition bearing on their capacity to form the intent required to commit a specific intent crime, see § 18-1-803, 8 C.R.S. (1973), as implying a limit on the right to present such evidence in defense of a general intent crime, as such a reading would have been constitutionally impermissible. Hendershott, 653 P.2d at 392, 392 n. 5. Similarly, a construction of section 18-1-804(1), (4) as precluding the assertion of settled insanity as an affirmative defense would bring that statute into conflict with the constitutional right of defendants enunciated in In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), and People v. Cornelison, 192 Colo. 337, 340-41, 559 P.2d 1102, 1105 (1977), to have the prosecution prove beyond a reasonable doubt every element of the crimes charged, including the existence of a voluntary act as required by section 18-1-502, 8B C.R.S. (1986), as well as any additional culpable mental state that the legislature may require. See Hendershott, 653 P.2d at 390. I therefore cannot accept the majority’s view that a recognition of this defense is inconsistent with the statute and not justified by public policy.
The majority goes on to support its position by analogizing the particular form of settled insanity asserted in this case, amphetamine delusional disorder, to temporary insanity, which we have stated at least in passing is not a viable defense under our statutes. People v. Low, 732 P.2d 622, 632 (Colo.1987). Because evidence was presented that settled insanity is not a permanent condition, the majority concludes that it would be “erroneous” to find that it constitutes a valid defense. Maj. op. at 817. I disagree with this argument for the same reasons that Judge Dubofsky set forth in his dissent in the court of appeals. Not only is there no requirement in our statutory law that a person’s insanity be permanent before it may be asserted as an affirmative defense, see §§ 16-8-101 to -107, 8A C.R.S. (1986 & 1992 Supp.), but such a requirement would undermine the assumption implicit in our statutory scheme that a person adjudged insane can be treated and at some point safely returned to society. See People v. Gilliland, 769 P.2d 477, 480-82 (Colo.1989) (discussing statutory requirements for a defendant’s release from an insanity commitment). As Judge Dubofsky well stated, the proper focus is not on “the extent of the period of manifest insanity,” but rather is on “when the drugs or alcohol were ingested in time relationship to the criminal offense.” Bieber, 835 P.2d at 550. Consequently, I am not persuaded that any similarity between temporary insanity and the condition that the defendant in this case alleged requires preclusion of his assertion of settled insanity as a defense;
Having reached the conclusions that neither the statutory provisions governing intoxication nor the public policy concerns *823raised by the majority justify its decision and that the distinction between insanity that results from a previous long-term drug or alcohol use and a short-term intoxicated condition that results immediately from consumption of these substances warrants recognition of settled insanity as a defense, the next consideration is the effect of the trial court’s refusal to instruct the jury on this defense, as the defendant requested. A defendant is entitled to have the jury accurately instructed on the law as it relates to the evidence. Ellis v. People, 114 Colo. 334, 344-45, 164 P.2d 733, 737-38 (1945). A defendant is also entitled to a theory of the case instruction that states his defense if there is evidence to support his allegations. People v. Marquez, 692 P.2d 1089, 1098 (Colo.1984). Under these precepts, because the defendant’s assertions would warrant an acquittal if the jury believed them to be true and if settled insanity were recognized as a defense, I would hold that the trial court erred in not instructing the jury on this doctrine. Considering the due process implications in this case, I conclude that this error requires reversal of the judgment of conviction and a new trial on the sanity issue in which the jury may be properly instructed. See People v. Hardin, 199 Colo. 229, 234, 607 P.2d 1291, 1294-95 (1980).
The majority today holds that a person who at the time of the commission of an act is incapable of distinguishing right from wrong with respect to that act as a result of a mental disease or defect brought about by substance abuse, even though that substance abuse was remote in time, is criminally responsible for that act. In doing so, the majority contravenes long established principles of criminal responsibility and charts a course contrary to all other jurisdictions that have addressed this issue. In my view the statute upon which the majority relies in no way requires this result. I dissent.
ERICKSON and KIRSHBAUM, JJ., join in this dissent.
. In the Colorado Court of Appeals, two members of the three judge panel recognized settled insanity as a defense. That view is the basis of Judge Dubofsky’s dissent. Bieber, 835 P.2d at 548-51 (Dubofsky, J., dissenting). Judge Tursi agreed that ‘“settled insanity’ can be a disease or defect of mind within the [statutory] definition of insanity,” but took the position that in the present case it was an evidentiary question fairly arguable to the jury under the instructions given. Bieber, 835 P.2d at 548 (Tursi, J., specially concurring).
. Insanity is defined in § 16-8-101, 8A C.R.S. (1986), which states that
(1) The applicable test of insanity shall be, and the jury shall be so instructed: "A person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act is not accountable. But care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives, and kindred evil conditions, for when the act is induced by any of these causes the person is accountable to the law.".
(2) The term “diseased or defective in mind”, as used in subsection (1) of this section, does not refer to an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
. The defendant proffered the following instruction:
Insanity produced by long-continued use of amphetamines affects responsibility in the same way as insanity produced by any other cause if the mental disease or defect causing the insanity is "settled”.
"Settled" does not mean permanent or incurable, but means that the mental disease or defect resulting in insanity exists independently of the contemporaneous use of the drug. One who is actually insane does not lose the defense of insanity simply because, at the time he committed the act in question, he may also have been intoxicated. It is immaterial that the use of amphetamines may have caused the insanity, as long as the insanity was of a settled nature and qualifies as insanity as defined in Instruction No._
. For purposes of this dissent, my references to the defendant’s mental condition are phrased in terms of the defense of insanity rather than of impaired mental condition, see § 16-8-102(2.7), -103.5, 8A C.R.S. (1986 & 1992 Supp.); § 18-1-803, 8B C.R.S. (1986), because the defendant pleaded not guilty by reason of insanity.
. One writer has suggested that the appropriate distinction should be "between the alcoholic psychoses, which though they may be of a temporary nature are characterized by their indirect and gradual onset, and other mental effects of alcohol which are the psychic and somatic results of a single occasion of alcoholic ingestion.” Note, Intoxication as a Criminal Defense, 55 Colum.L.Rev. 1210, 1220-21 (1955).
Although I see no need to define specifically the type of conditions that may constitute set-tied insanity and believe that the only relevant question is whether a person meets the test set forth in § 16-8-101, I am satisfied that the distinctions between legal insanity and intoxication provide ample support for treating persons suffering from these conditions differently.
. It is noteworthy that Hooks was decided in the context of an intoxication statute that even the majority believes is similar enough to § 18 — 1— 804 to be of relevance to the construction of our statute. Maj. op. at 816.