¶1(dissenting)—I concur with the majority's holding that the warrant affidavit contained sufficient facts to establish probable cause independent of the defendant's illegally obtained statement. I dissent from the majority's analysis of the voluntary intoxication statute because I believe the analysis ignores basic axioms of statutory interpretation.
¶2The majority holds that voluntary intoxication can never *897be a defense to criminal negligence. The voluntary intoxication statute, RCW 9A.16.090, provides that "whenever the actual existence of any particular mental state is a necessary element to constitute a particular species or degree of crime, the fact of [the defendant's] intoxication may be taken into consideration in determining such mental state." (Italics mine.) The defendant contends this defense applies to all four of the particular mental states defined in RCW 9A.08.010; namely, intent, knowledge, recklessness, and criminal negligence. The State argues that public policy considerations require the courts to limit the intoxication defense to the three most culpable mental states, excluding criminal negligence.
¶3There are two Court of Appeals decisions in conflict on this issue. In State v. Simmons, 30 Wn. App. 432, 635 P.2d 745 (1981), review denied, 97 Wn.2d 1007 (1982), one panel of the Court of Appeals concluded that the adoption of RCW 9A.08.010, with its four levels of culpability, "greatly expands the intoxication defense because nearly all crimes require, as an element, one of the four mental states described in RCW 9A.08.010." Simmons, at 436 n.3. Although concerned with the application of the intoxication defense to virtually all crimes, the Simmonscourt believed statutory construction compelled this result. Simmons, at 436 n.3.
¶4On the other hand, in State v. Collins, 30 Wn. App. 1, 632 P.2d 68, review denied, 96 Wn.2d 1020 (1981), another panel of the Court of Appeals concluded that "public policy requires in the event of intoxication as related to homicide . . . it relate only to knowledge or intent . . . but not criminal negligence." Collins, at 15. The court did not state whether public policy concerns would compel the same result in nonhomicide cases involving criminal negligence.
¶5As originally enacted, the intoxication statute referred not to "particular mental state", but rather to "particular purpose, motive or intent". Laws of 1909, ch. 249, § 6, p. 891. This court interpreted this phrase to apply to "specific intent" crimes, but not to "general intent" crimes. See *898State V. Mriglot, 88 Wn.2d 573, 564 P.2d 784 (1977).
¶6When the Legislature adopted the new criminal code, it replaced the concepts of general and specific intent with four levels of culpability: intent, knowledge, recklessness and criminal negligence. RCW 9A.08.010; State v. Allen, 101 Wn.2d 355, 359, 678 P.2d 798 (1984). See State v. Griffin, 100 Wn.2d 417, 418-19, 670 P.2d 265. (1983). At the same time, the Legislature amended the intoxication statute to refer to "particular mental state" rather than "purpose, motive or intent". Laws of 1975, 1st Ex. Sess., ch. 260, § 9A.16.090, p. 830. As noted in Simmons, these amendments appear to extend the intoxication defense to all crimes in which one of the four mental states set forth in RCW 9A.08.010 constitutes an element of the crime. Cf. State v. Griffin, supra(diminished capacity defense may be instructed upon whenever the evidence reasonably connects the defendant's mental condition at the time of the alleged crime with his ability to possess any of the four mental states described in RCW 9A.08.010). Of course, if a crime includes intoxication as an element of the offense, RCW 9A.16.090 has no applicability.
¶7The Court of Appeals understandably was sensitive to the serious public policy considerations raised by the expanded version of the intoxication defense. Under the rule of lenity, however, criminal statutes should be construed strictly against the State and in favor of the accused. State v. Thompson, 38 Wn.2d 774, 779, 232 P.2d 87 (1951); Seattle v. Green, 51 Wn.2d 871, 874, 322 P.2d 842 (1958). If the Legislature desires to limit the scope of RCW 9A. 16.090 to crimes involving all mental states other than criminal negligence, it is free to amend the statute to reflect that desire. Until then, a defendant should be entitled to an instruction permitting the jury to determine whether the defendant's intoxication precluded formation of the requisite mental state of criminal negligence.
¶8Although the majority decides that voluntary intoxication is not available to the defendant as a defense in this case, it nevertheless proceeds to reach the issue of who *899bears the burden of proof of intoxication. Its decision on the burden of proof thus is dicta. However, because the opinion may later be cited as persuasive authority, I feel compelled to point out problems with the court's position.
¶9Initially, one must determine whether intoxication is a "defense" to a criminal act. The answer to this question is not as obvious as one might assume. Compare State v. Carter, 31 Wn. App. 572, 643 P.2d 916 (1982) with State v. Fuller, 42 Wn. App. 53, 708 P.2d 13 (1985) (which reach conflicting decisions). Responsibility for this ambiguity, however, rests with the Legislature. In RCW 9A.16.090, the Legislature on the one hand states that intoxication does not make an act "less criminal", and on the other states that intoxication "may be taken into consideration" by the jury in determining whether the defendant acted with the requisite mental state. These propositions are contradictory. If a particular mental state must be proved, and the jury may consider the defendant's intoxication in determining whether the defendant acted with that mental state, intoxication must be a defense to a criminal act. If not, RCW 9A.16.090 is meaningless verbiage.
¶10Given that intoxication is a defense of one sort or another, this court must characterize its nature, because in determining what burden of persuasion, if any, the defendant may bear, "'the nature of the defense is a critical consideration."' State v. Carter, supraat 575 (quoting W. LaFave & A. Scott, Criminal Law § 8, at 48 (1972)).
¶11As noted by LaFave and Scott, there are three basic types of defenses: those that negate the existence of one of the essential elements of the crime, those that serve as an excuse or justification for commission of the crime, and a third type that does not concern us here. W. LaFave & A. Scott, at 48-49. The defense of voluntary intoxication falls within the first category, those that negate one of the essential elements of the crime—in this case the defendant's state of mind. With respect to these defenses, the rule following In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970) has generally been that the prosecution *900bears the burden of proving the nonexistence of a defense which by its terms asserts the absence of an essential element of the crime. See, e.g., Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975) (violation of due process to require defendant to prove he had acted in the heat of passion to reduce murder to manslaughter). But see Patterson v. New York, 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (1977) (due process clause does not require state to prove beyond a reasonable doubt absence of every defense if too cumbersome, too expensive, and too inaccurate).
¶12Patterson v. New York, supra,represents a significant retreat from the principles enunciated in In re Winship, supra, and Mullaney v. Wilbur, supra.In fact, if RCW 9A.16.090 had placed the burden of persuasion expressly on the defendant, the statute probably would survive Supreme Court scrutiny following Patterson. The Legislature, however, failed to expressly allocate the burden of persuasion on either the State or the defendant. As noted in State v. Acosta, 101 Wn.2d 612, 615-16, 683 P.2d 1069 (1984):
[T]he Legislature has clearly provided that a defendant must prove certain defenses by a preponderance of the evidence. See RCW 9A.12.010 (insanity); RCW 9A.32-.030(1)(c), .050(1)(b) (felony murder); RCW 9A.40.030 (kidnapping); RCW 9A.44.030 (sexual offenses); RCW 9A.48.060 (reckless burning); and RCW 9A.76.100 (compounding a crime). The Legislature's silence on the burden of proof of self-defense, in contrast to its specificity on these other defenses, is a strong indication that the Legislature did not intend to require a defendant to prove self-defense.
¶13See also State v. McCullum, 98 Wn.2d 484, 656 P.2d 1064 (1983). Likewise, given the Legislature's silence on this issue with respect to the intoxication defense, the prosecution should bear the burden of disproving beyond a reasonable doubt the existence of the defendant's intoxication defense. Accord, State v. Carter, 31 Wn. App. 572, 643 P.2d 916 (1982).
¶14*901For the foregoing reasons, I dissent.
¶15Reconsideration denied June 29, 1987.