The fastest way to contact Artz & Sturm: ‪(310) 400-6356‬


Exclude Evidence of Tolerance

MOTIONS IN LIMINE:Other Creative Motions


Defendant is presumed to be not guilty of DUI or driving with a .08% or higher. In an attempt to convict him of those charges, the prosecution may desire to introduce evidence of “tolerance,” e.g., have an expert opine that Defendant may have a “tolerance” to alcohol, i.e., “the ability to mask the effects of alcohol.” However, the prosecutor lacks any admissible evidence to support such a claim. A “tolerance” to alcohol is ordinarily developed as a result of drinking significant amounts of alcohol on a regular basis. “Tolerance” is a euphemism to describe that a person has a prolonged history of excessive drinking and from that he has learned the “ability to mask the effects of alcohol.”


Unless the People can show Defendant has a tolerance to alcohol, the evidence that some people may have such a tolerance is not relevant. The general statement that “some” people may have developed a tolerance to Alcohol has no relevance unless all defendants are tolerant or this defendant is tolerant. Preliminary foundational facts must be shown prior to the introduction of evidence. The prosecution must show as a “preliminary fact” that Mr. Hicker has the “ability to mask alcohol’s effects.”

Evidence must “pass the court’s scrutiny before it is submitted to the jury – intended to forestall the jury’s uncritical acceptance of scientific evidence…” Given the facts of this defendant, the only way one could conclude Defendant may have such an ability is to assume that he may have that trait: the reasoning is circular. Such an assumption is “insidious.” Tolerance is not relevant unless the prosecution can prove that the defendant has such a tolerance.

Under Evidence Code §403 and People v. Herrera (2000) 83 Cal.App.4th 46, 61, “until the preliminary fact is established, the evidence depending on it is neither relevant nor admissible.” (People v. Lucas (1995) 12 Cal.4th 415, 466; People v. Collins (1975) 44 Cal.App.3d 617, 628 (evidence of threatening telephone call made to witnesses not relevant until preliminary fact of caller’s identity is established). If the prosecution cannot establish the critical link between“tolerance” and Defendant, then it is inadmissible per Evid.C. §403. The People have the burden of proof on all issues under Evid.C §501 and Pen.C. §1096.

Reference to the ability of “some people” to “mask the effects of alcohol” creates a substantial danger of misleading the trier of fact. Reference to Defendant as having a “tolerance” to alcohol, would be an improper assumption.

The prosecution argument’s first premise is that some people have learned to mask the effects of alcohol. From this premise, so the prosecution argument goes, is that since the Defendant is guilty of being under the influence, the reason the defendant did not demonstrate significant impairment during driving and/or the field sobriety tests is because he may have a tolerance to alcohol. The argument assumes facts; it works backwards from effect to cause.


  1. To allow the prosecution to present “general” evidence of tolerance, inferring that the defendant’s conduct and response to alcohol might be in conformity therewith, would violate Due Process and the Right to a Fair Trial.
  2. The citizen is presumed innocent. To admit “tolerance” evidence violates the Constitutional presumption of innocence and violates the burden of proof. The people have the burden of proof of all facts that point towards Defendant guilt. See, e.g., Pen.C. §1096. By allowing the prosecutor to inform the jury that tolerance is an admissible topic of discussion, the court tacitly approves may be some basis for that evidence. Such a communication potentially lightens the prosecution’s burden of proving the defendant’s guilt, a violation of Due Process.
  3. To allow the prosecution to admit “general” evidence of “tolerance” without connecting it to the defendant would assume facts not in evidence.
  4. Any evidence of “tolerance” would constitute an improper hypothetical, i.e. there is no evidence of said facts. Hypos must be based on evidence, not speculation. Tolerance evidence would be improper expert testimony imputing facts to this defendant without any basis.
  5. General evidence that the defendant might be a person that drinks excessively on a regular basis (thereby allowing an inference of conduct in conformity thereof) is highly prejudicial and without any basis in evidence, and should be excluded under Evid.C. §352.
  6. Any claims that this defendant may have developed tolerance to alcohol is objected to on the grounds of speculation.


The prosecution would use a “blue print,” e.g., some “people have developed a tolerance to alcohol (due to prolonged and excessive drinking), and the defendant could be one of those persons.” Because “criminal prosecutions cannot be blueprinted, but must be tailored to the 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 9th Cir. (2001) 237 F.3d. 1008. The prosecution’s theory is that some people that commit a D.U.I. have a high tolerance, the defendant may have a high tolerance, and thus the defendant is guilty.

In People v. Robbie (2001) 92 Cal.App.4th 1075, the court held that the trial court abused its discretion in admitting expert testimony constituting profile evidence. The prosecution, in a case alleging sexual crimes, called an “expert” of sexual offenders from the Department of Justice “in the area of the behavior and conduct of persons who commit sexual assaults. The testimony was that “not all rapes involve violence or injury to the victim” and the expert described various kinds of conduct engaged in by rapists that were consistent with the facts of the prosecution’s case, e.g. the offender returns the victim to her neighborhood, engages in small conversation, and other behaviors of the defendant that the expert testified were all consistent with sex offenders. The Robbie Court noted that admitting expert testimony will not be disturbed on appeal unless a manifest abuse of discretion is shown and the expert’s testimony constituted improper profile evidence. “Profile” is conduct and characteristics commonly displayed by those who commit a certain crime. The court noted that “profile evidence is generally inadmissible to prove guilt.” As stated by the Robbie court, Supra, 92 Cal.4th 1075:

“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 in a certain way; the defendant acted that way; therefore, the defendant is a criminal. Guilt flows ineluctably from the major premise to the minor premise to the conclusion. The problem is that the major premise is faulty. It implies that criminals, and only criminals, act in a given way. In fact, certain behavior may be consistent with both innocent and illegal behavior, as the People’s expert conceded here.” (Robbie, supra, 92 Cal.App.4th at p. 1085.)”

Drug courier profiles have been held to be “inherently prejudicial because of the potential they have for including innocent citizens as profile drug couriers…” A defendant has a right to be tried based on the evidence against him, not on theories. Profile evidence is nothing more than the opinion of officers. (U.S. v. Beltran-Rios, (9th Circuit 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. It was error for the trial judge to allow police investigators to testify in general about the operation of auto theft rings which happened to match the defendant’s circumstances (the driver’s denying knowledge that the vehicle was stolen). The clear thrust of the evidence was to establish that the defendant “fit a certain profile.” (Id. at 1006.) The court held that “profile” evidence should not be considered the issue of guilt because of the potential of including innocent people as well as the guilty.

Similar, in People v. Castaneda (1997) 55 Cal.App.4th 1067 at 1072, testimony that the defendant fit the profile of a heroin dealer was inadmissible: “every defendant has the right to be tried based on the evidence tying him to the specific crime charged, and not on general facts accumulated by law enforcement regarding a particular criminal profile.”

Drivers that are not under the influence can drive fairly well, do field sobriety tests pretty good, or otherwise not show gross impairment.


To allow “tolerance” into evidence and suggest that Defendant may have the ability to mask the effects of alcohol would deny him a fair trial and due process. The prohibition against character evidence is based on Fourteenth Amendment principles of “fundamental fairness.” (Cooper v. Oklahoma (1996) 517 U.S. [134 L.Ed.2d 498]; see also McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378.) The courts have also 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; and McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378.)


Division 9 of the Evid. Code is entitled “Evidence Affected or Excluded by Extrinsic Policies.” Chapter 1 deals with evidence of character, habit, or custom. If the prosecution had evidence that the defendant was a habitual excessive drinker, that evidence would be excluded under Evid.C. §1101. Yet, without any evidence of excessive drinking habits of Defendant, the prosecution wants to present general evidence of “tolerance” and would ask the jury to infer (without a factual basis) that this defendant may have acquired an ability to mask the effects of alcohol. E.C. §1101(a) provides that evidence of a trait of his character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is inadmissible when offered to prove his conduct on a specified occasion. If there was opinion evidence or specific acts of excessive drinking, it would be excluded. Here, there is no such evidence.


The court must exclude “tolerance” to alcohol unless the People can show a foundation that connects that evidence to Defendant. The prosecution cannot “assume’ facts, i.e., Defendant “may be tolerant.” The prosecution cannot use profile evidence. (See Exhibit re “flight risk” this page.) The admission of such irrelevant, prejudicial and speculative evidence that Defendant could be tolerant could render the trial fundamentally unfair and deny defendant due process.