§1:51 Memorandum in Support of Defendant’s Motion in Limine to Exclude
Evidence of Tolerance
MEMORANDUM IN SUPPORT OF DEFENDANT‟S MOTION IN LIMINE
TO EXCLUDE EVIDENCE OF TOLERANCE
It is anticipated that the Prosecution will attempt to argue “tolerance” and
present “general” evidence of tolerance, that is, that some people can be “tolerant”
to alcohol due to their history of drinking excessively on a regular basis.
B. EVIDENCE OF TOLERANCE IS INADMISSIBLE FOR LACK OF
FOUNDATION BECAUSE THE PROSECUTION HAS NO PROOF THAT
THE DEFENDANT HAS A HISTORY OF DRINKING.
The proponent of the proffered evidence has the burden of producing evidence as
to the existence of the preliminary fact, and the proffered evidence is inadmissible
unless the court finds that there is evidence sufficient to sustain a finding of the
existence of the preliminary fact, when the relevance of the proffered evidence
depends on the existence of the preliminary fact. Cal. Evid. Code §403(a).
There is no evidence that this defendant has a history of heavy alcohol
consumption or that the defendant has any acquired tolerance to alcohol, or
acquired the ability over time through practice to hide the effects of alcohol.
Therefore, any evidence suggested by the prosecution of the defendant‟s
prolonged and/or excessive drinking (i.e. tolerance) is objected to on the grounds
of foundation. The Prosecution cannot demonstrate that such “possible” evidence
relates to this defendant.
C. EVIDENCE OF TOLERANCE IS INADMISSIBLE “PROFILE”
In People v. Robbie (2001) 92 Cal. App. 4th 1075, the court held that the
trial court abused discretion in admitting expert testimony constituting profile
evidence. The prosecution, in a case alleging sexual crimes, called an “expert”
from the Department of Justice “in the area of the behaviors and conducts of
persons who commit sexual assaults.” The expert had a great deal of expertise
investigating sexual offenders. The testimony was that not all rapes involved
violence or injury to the victim and described various kinds of conduct engaged in
by rapists that were consistent with the facts of the prosecution‟s case, e.g. the
offender returned the victim to her neighborhood, engaged in small conversation,
and other behaviors the expert testified were all consistent with sex offenders.
The Appellate Court noted that the admission of expert testimony will not
be disturbed on appeal unless a manifest of abuse of discretion is shown (citation
omitted) and that the expert‟s testimony constituted improper profile evidence.
“Profiles” are a collection of conduct and characteristics commonly displayed by
those who commit a certain crime. The court noted that “profile evidence is
generally inadmissible to prove guilt.” For example, drug courier profiles have
been held to be “inherently prejudicial because of the potential they have for
including innocent citizens as profile drug couriers….” Every defendant has a
right to be tried based on the evidence against him, not on techniques utilized by
law enforcement officials in investigating criminal activity. Drug court profile
evidence is nothing more than the opinion of those officers conducting the
investigations. U.S. v. Beltran-Rios (9th Cir. 1989) 878 F.2d 1208, 1210, quoting
United States v. Hernandez-Cuartas (11th Cir.1983) 717 F.2d 552, 555.
In People v. Martinez (1992) 10 Cal. App. 4th 1001, the court rejected the
use of profile evidence regarding driving a stolen truck. The trial court allowed
police investigators to testify about the operation of auto theft rings which
happened to match the defendant‟s circumstances (e.g. the driver‟s denying
knowledge that the vehicle was stolen), although the evidence was not
characterized as a profile. Id. at 1006. The appellate court held that those issues
are inappropriate for consideration on the issue of guilt or innocence because of
the potential of including innocent people as well as the guilty.
Similarly, in People v. Castaneda (1997) 55 Cal. App. 4th 1067, testimony
that the defendant “perfectly fit” the profile of a heroin dealer was inadmissible.
The court held “every defendant has the right to be tried based on the evidence
trying him to a specific crime charged, and not on general facts accumulated by
law enforcement regarding a particular profile.” Id. at 1072.
As stated by the Robbie court, “profile evidence is inherently prejudicial
because it requires the jury to accept an erroneous starting point in its
consideration of the evidence. The syllogism is that „criminals act a certain way;
the defendant acted that way; therefore, the defendant is a criminal.‟ Guilt flows
from the major premise to the minor premise to the conclusion.” The prosecution
would argue that the defendant may have a high tolerance to alcohol (without
evidence of that fact) and that is why he drove fairly well or to argue “possible”
reasons for defendant‟s performance on the balance tests. The problem is that
people who are not guilty of driving under the influence or having a BAC of .08%
or higher also can drive fairly well, perform well on FST‟s, and otherwise not
show gross impairment.
D. EVIDENCE OF TOLERANCE IS INADMISSIBLE BECAUSE IT IS MORE
PREJUDICAL THAN PROBATIVE.
The court in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will create
substantial danger of undue prejudice, of confusing the issues, or of misleading
the jury. Cal. Evid. Code §352. To allow the prosecution to introduce general
evidence of “tolerance” without connecting it to the defendant would be to admit
irrelevant, prejudicial, and speculative evidence. Such speculative evidence of
tolerance, (i.e., this defendant could be habitually drunk), is further objected to on
the grounds of Evid. Code § 352.
General evidence that the defendant might be a person who drinks excessively on
a regular basis (thereby allowing an inference of conduct in conformity therewith)
is highly prejudicial; especially when the prosecution has no evidence that the
defendant drinks excessively on a regular basis. To allow the prosecution to
present “general” evidence of tolerance, inferring that the defendant‟s conduct
maybe in conformity therewith would violate due process and the right to a fair
The prosecution has no evidence that the defendant has a history of excessive
and/or prolonged use of alcohol. Instead, the prosecution would inquire from its
expert to extrapolate about the various possibilities that may exist in the world
regarding the fact that some (other) people have acquired a tolerance to alcohol.
The prosecution expert would use a “blue print.” Since some people are tolerant
to alcohol, the defendant may be tolerant due to prolonged and excessive
drinking. Because “criminal prosecutions cannot be blueprinted, but must be
tailored to the charges and facts of each case in consideration of the individual
rights of each defendant,” such a method of imputing tolerance lacks any
probative value and is impermissible. See United States v. Vallejo, 237 F.3d.
1008 (9th Cir. 2001).
The expert testimony would portray this productive citizen as a person who might
possibly drink alcohol excessively on a regular basis without any evidence that
those facts are true. Such evidence is improper expert testimony imputing facts to
the defendant without any basis whatsoever and would constitute prejudicial
E. CHARACTER EVIDENCE OF PRIOR AND PROLONGED EXCESSIVE
DRINKING IS PROHIBITED BY EVIDENCE CODE § 1101.
California Evidence Code section 1101(a) provides that evidence of a
person‟s character or a trait of his or her character (whether in the form of an
opinion, evidence of reputation, or evidence of specific instances of his or her
conduct) is inadmissible when offered to prove his or her conduct on a specific
occasion. All the more does the exclusion apply when there is no opinion,
reputation, or specific incidents. “Tolerance” is only another word for continued
and excessive drinking over a long period of time, i.e., character evidence. Even if
the prosecution had evidence that the defendant drinks excessively on a regular
basis, it would be excluded under Evidence Code section 1101 as inadmissible
character evidence. The prosecution has no such evidence.
[Since some states follow the Federal Rules of Evidence, you may want to
include the following.]
F. “PROPENSITY” EVIDENCE VIOLATES THE RIGHT TO DUE PROCESS.
The courts have held that propensity evidence violates an accused‟s right
to due process. Boyd v. United States (1892) 142 U.S. 450; Michelson v. United
States (1948) 355 U.S. 469; Estelle v. McGuire (1991) 502 U.S. 62; McKinney v.
Rees (9th Cir. 1993) 993 F.2d 1378.
Federal Rule of Evidence 404(b) generally prohibits the introduction of
evidence of other crimes, wrongs or acts to demonstrate the defendant‟s bad
character, moral turpitude or criminal disposition to prove he acted in conformity
with the prior acts or events. United States v. Summer 119 F.3d 658 (8th Cir.
1997); United States v. Roberts 88 F. 3d 872 (10th Cir. 1996).
G. EVIDENCE OF PRIOR CRIMINAL ACTIVITY IS INADMISSIBLE.
Evidence of prior criminal activity is inadmissible to show defendant is a
bad person or acted criminally on the occasion at issue. There is not a
“conviction” for tolerance (or prior convictions for DUI). There is no proof of
tolerance. To allow “tolerance” into evidence and somehow suggest that this
defendant may have the acquired trait of tolerance due to the possibility of his
excessive drinking would deny the defendant a fair trial.
There is no evidence that this defendant drinks excessively on a regular
basis. If the court allows evidence of tolerance to alcohol, it would violate the
policies that exclude reputation evidence and specific incidents of bad conduct.
The admission of such prejudicial and speculative evidence would render the trial
fundamentally unfair and deny defendant due process. This is all the more true
when there is no evidence of regular excessive drinking by this defendant.
Attorney for Defendant