concurring:
¶ 32 The trial court’s instruction regarding intoxication prevented McKeon from asserting involuntary intoxication as a defense for any requisite state of mind. Because the instruction correctly states the law in Arizona, the giving of it was not error.
¶ 33 The majority construes A.R.S. § 13-503 as impliedly creating a state of mind defense based on temporary intoxication caused by non-abusive use of prescription medication. To reach this result, my colleagues use a three-step approach. First, they note that § 13-503 does not, by its terms, specifically prohibit a defendant from asserting a temporary intoxication defense arising from the non-abusive consumption of prescription medication, which may include psychoactive substances. Swpra, ¶ 14. Second, they equate an act committed while involuntarily intoxicated with one involuntarily committed and argue that punishing such an act would offend a fundamental principle of justice. Supra, ¶20. Third, they conclude, therefore, that § 13-503 must be read as permitting a defendant to urge the lack of a culpable mental state resulting from the proper use of prescription drugs. Supra, ¶ 21.
¶34 Although I agree with the majority that the effect of the 1993 change to A.R.S. § 13-503 was to eliminate temporary intoxication resulting from the voluntary ingestion of alcohol or drugs or the abuse of prescribed medications as a defense for any crime or requisite state of mind for that crime, I respectfully disagree with its conclusion that the current version of § 13-503 implies the existence of an involuntary intoxication defense.
¶ 35 At common law, voluntary intoxication was never a defense to a criminal charge. City of Minneapolis v. Altimus, 306 Minn. 462, 238 N.W.2d 851, 855 (1976) (quoting Pearson’s Case, 168 Eng. Rep. 1108, 2 Lew. Cr.Cas. 144, 145 (1835) (“Voluntary drunken*578ness is no excuse for crime.”)). Involuntary intoxication, however, was considered a defense to criminal liability if it caused the defendant to become temporarily insane. City of Minneapolis, 238 N.W.2d at 855. The non-abusive consumption of prescription medication has long been treated as a form of involuntary intoxication. See generally Hassman, supra ¶ 18.
¶ 36 The common-law rule that involuntary intoxication is a defense only when it renders the defendant temporarily insane is still followed by many states today. See, e.g., City of Minneapolis, 238 N.W.2d at 857 (“The numerous cases ... in which the common-law defense of involuntary intoxication has been recognized are virtually unanimous in holding that this defense is available only when the defendant is legally insane.”); Saldiveri v. State, 217 Md. 412, 143 A.2d 70, 77 (1958) (court assumes that involuntary intoxication is a defense only if the degree of intoxication amounts to insanity); State v. Gardner, 870 P.2d 900, 902 (Utah 1993) (“[T]he standard for involuntary intoxication is the same as that for insanity.”); People v. Wilkins, 184 Mich.App. 443, 459 N.W.2d 57, 60 (1990) (“[I]nvoluntary intoxication is a defense included within the ambit of the insanity defense.”). The rationale for limiting involuntary intoxication as a defense coextensive with that of insanity is that it merely “establishes only that [the] derangement is without culpability and hence is to be dealt with the same as if it were the result of mental disease or defect.” Rollin M. Perkins & Ronald N. Boyce, Criminal Law 1005 (3d ed.1982).
¶ 37 By the end of the nineteenth century, the severe common-law rule precluding a jury from considering voluntary intoxication as a defense to crime was ameliorated in most jurisdictions by judicial development— and eventually, statutory adoption — of an exception that allowed a defendant to introduce evidence of voluntary intoxication to show that he lacked the specific intent necessary to commit a particular offense or degree of offense. Montana v. Egelhoff, 518 U.S. 37, 47, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996). As a parallel development in some of these jurisdictions, defendants were permitted to assert involuntary intoxication not only as an excuse under the insanity defense but also to negate specific intent. See, e.g., State v. Mriglot, 88 Wash.2d 573, 564 P.2d 784, 786 (1977) (“If a defendant is so intoxicated (voluntarily or involuntarily) as to be unable to form the requisite intent, he cannot be guilty of a specific intent crime. He need not prove temporary insanity simply because the intoxication happened to be involuntary.”).
¶ 38 No previous case in Arizona addresses the precise question whether the use of an involuntary intoxication defense in Arizona is restricted to claims of temporary insanity or may also be raised to negate the requisite mental state in what formerly were called specific intent crimes. It is clear, however, that Arizona followed the common-law rule that permitted involuntary intoxication to be raised in the context of the insanity defense. In Territory v. Davis, 2 Ariz. 59, 10 P. 359 (1886), the defendant contended, and the Supreme Court of the Territory of Arizona agreed, that the jury should have been allowed to consider testimony that his mind had become weakened from a “continuous use of ardent spirits” and that, at the time he shot the deceased in the streets of Tombstone, he was suffering from an attack of delirium tremens resulting in a state of insanity. In Burrows v. State, 38 Ariz. 99, 297 P. 1029 (1931), overruled on other grounds, State v. Hernandez, 83 Ariz. 279, 320 P.2d 467 (1958), the defendant claimed that he had become intoxicated after drinking alcohol at the insistence of the victim and then shot him while in a “daze[ ].” Id. at 104, 297 P. at 1031. Paraphrasing the insanity formulation commonly referred to as M’Naghten’s Rule, for The Queen v. M’Naghten, 4 St.Tr. (N.S.) 847 (1843), our supreme court articulated the “true rule” regarding the degree to which involuntary intoxication must incapacitate a person to be used as a defense in a criminal case:
[W]e are of the opinion that [involuntary] intoxication must be sufficient to affect the reason of a defendant to the extent that he does not understand and appreciate the nature and consequences of his act, or, as is commonly said, that he does not know right from wrong.
*579Id. at 115, 297 P. at 1035. On the other hand, temporary mental incapacity caused by voluntary alcohol or drug intoxication' has consistently been found insufficient to constitute insanity. See, e.g., State v. Cooper, 111 Ariz. 332, 334, 529 P.2d 231, 233 (1974); State v. Dante, 25 Ariz.App. 150, 153, 541 P.2d 941, 944 (1975), overruled on other grounds, State v. Hunter, 136 Ariz. 45, 664 P.2d 195 (1983).
¶ 39 In its analysis, the majority focuses on what it characterizes as an “amendment” to § 13-503 in 1993. Supra, ¶ 13. However, the previous version was not simply amended but was repealed as part of a comprehensive revision of Arizona’s insanity statutes. 1993 Ariz. Sess. Laws, ch. 256. Both of the then-existing statutes regarding the insanity test (A.R.S. § 13-502 (1978)) and voluntary intoxication (A.R.S. § 13-503 (1989)) were repealed. See id. § 2. The legislature added a new § 13-502 that, among other changes, deleted previous language that allowed an insanity defense to be based on a defect of reason such that the person did not know the nature and quality of the act4 and codified the existing ease law by excluding from the definition of a mental disease or defect “disorders that result from acute voluntary intoxication or withdrawal from ... drugs.” See id. § 3. The legislature also significantly changed Arizona law regarding temporary intoxication by replacing the previous version of A.R.S. § 13-503 5 with the current version providing that voluntary temporary intoxication “does not constitute insanity and is not a defense for any criminal act or requisite state of mind.” Id. Clearly, § 13-502 impliedly permits an insanity defense based on involuntary intoxication and § 13-503 precludes voluntary intoxication from being used as either an insanity or state of mind defense.
¶ 40 Nonetheless, in the ashes of a statute that completely abrogates temporary voluntary intoxication as a defense, the majority finds an uncharred remnant of an involuntary intoxication defense that exists separate and apart from the insanity defense. If the previous version of § 13-503 had not been repealed and was still in effect, the majority’s construction might be plausible. Cf. Mriglot, 564 P.2d at 785-86. As it is, I believe the majority has exceeded the court’s proper role by judicially creating an affirmative defense. See State v. Bohannan, 101 Ariz. 520, 524, 421 P.2d 877, 881 (1967) (“Courts will not read into a statute something which is not within the manifest intent of the legislature as gathered from the statute itself.”); see also A.R.S. § 13-103(A) (1997) (“All common law ... affirmative defenses are abolished. No conduct constitutes ... an affirmative defense unless it is ... an affirmative defense under this title or under another statute or ordinance.”).
¶41 Further, the majority fundamentally misapprehends the law when it implies that preventing a defendant from asserting that he lacked a requisite state of mind because of involuntary intoxication would somehow “abolish! ] the State’s burden of proving that a defendant possessed the requisite state of mind at the time of the offense.” Supra ¶ 20 n. 2. A state may preclude a defendant from offering psychological evidence to rebut *580mens rea. State v. Mott, 187 Ariz. 536, 541-42, 931 P.2d 1046, 1051-52 (1997) (citing Fisher v. United States, 328 U.S. 463, 66 5. Ct. 1318, 90 L.Ed. 1382 (1946)); see also Montana v. Egelhoff, 518 U.S. 37, 116 S.Ct. 2013, 135 L.Ed.2d 361 (statute barring a defendant from presenting evidence of voluntary intoxication to rebut mens rea does not violate due process). The decision by our legislature to treat a temporarily intoxicated person the same as everyone else, except if the intoxication was involuntary and to such a degree that the person was rendered insane, does not relieve the state of its burden to prove the requisite state of mind as an element of the crime. Instead, the majority decision resurrects a mens rea “diminished capacity” defense seemingly laid to rest by Mott, 187 Ariz. at 541, 931 P.2d at 1051 (“Arizona does not allow evidence of a defendant’s mental disorder short of insanity either as an affirmative defense or to negate the mens rea element of a crime.”).
¶42 The majority’s reliance on A.R.S. § 13-201 (1978) is also misplaced. Before criminal liability may be imposed, § 13-201 requires “the performance by a person of conduct which includes a voluntary act.” A voluntary act is “a bodily movement performed consciously and as a result of effort and determination.” A.R.S. § 13-105(37) (1994). An unconscious act has been construed as “ ‘one committed by a person who because of somnambulism, a blow on the head, or similar cause is not conscious of acting and whose act -therefore cannot be deemed volitional.’ ” State v. Venegas, 137 Ariz. 171, 173, 669 P.2d 604, 606 (App.1983) (quoting People v. Ray, 14 Cal.3d 20, 120 Cal.Rptr. 377, 533 P.2d 1017, 1019 (Cal.1975)).
¶ 43 The majority’s analysis confuses § 13-201’s requirement of a voluntary act with the condition of being involuntarily intoxicated6 in arriving at its conclusion that the trial judge violated “a fundamental principle of justice well recognized in Arizona” (supra ¶ 20) when he instructed the jury that it could not consider any evidence of defendant’s drug use in determining whether he acted intentionally, knowingly, or with premeditation. Therefore, I do not share my colleagues’ concern that A.R.S. § 13-503 must be read as permitting an involuntary intoxication defense lest a fundamental tenet of justice be violated. Furthermore, even if defendant was in a state of involuntary intoxication, he cannot plausibly claim that he was not performing a bodily movement “consciously and as a result of effort and determination” when he calculated and carried out his plan — that he had been brooding about for months — to kill his ex-wife and her new husband.
¶44 In summary, involuntary intoxication is a defense to a criminal act or requisite state of mind only if the person was insane at the time the act was committed. The defendant did not pursue an insanity defense at trial nor can he plausibly claim that his conduct fell outside the statutory definition of a “voluntary act.” Thus, the trial court properly instructed the jury not to consider any evidence of defendant’s claimed intoxication in arriving at its verdicts.
. The first sentence of A.R.S. § 13-502(A) now reads:
A person may be found guilty except insane if at the time of the commission of the criminal act the person was afflicted with a mental disease or defect of such severity that the person did not know the criminal act was wrong.
. In its sections on intoxication, the Model Penal Code avoids using “voluntary" and "involuntary” because the words "have unfortunate overtones, and are better used in other contexts.” Model Penal Code and Commentaries § 2.08 cmt. 3 n. 40 (1985).