Monder Law Group - News

YOUR ALCOHOL TOLERANCE SHOULD NOT BE USED AGAINST YOU

Getting arrested for a DUI is a scary moment, and standing trial for a DUI can be even scarier. One minute you’re having a great time with friends and colleagues at a happy hour event in the lively Gaslamp district, and the next you’re blinded by flashing lights and loud sirens. In such cases, it seems like the prosecution has made it their mission to paint you as the bad guy—as some evil partier who drinks to excess and has no regards for other.

Question: But everyone makes mistakes, so shouldn’t there be some sort of reigns you can put on the prosecution? Yes, and the smart defense attorney will use them skillfully.

The prosecution will try to admit showings of tolerance—how people who drink excessively on a regular and prolonged basis—makes it harder to determine their actual blood alcohol content. Really, what they’re doing is telling the jury you’re a regular excessive drinker.

But how can they say such things without proof? They do this by making statements that generally excessive drinking can lead to tolerance, and so without naming you directly, they’ve let the jury decide that you’re a perpetual drunkard. But this is where your brilliant defense attorney will come to the rescue! Your attorney should argue that: 1. If there’s no showing of your dirking pattern, then this statement is based on mere speculation, is incorrect, and should be excluded. 2.  If the statement is made about tolerance in general, then it is not specific to the case at hand, thus irrelevant and wasting the court’s time.

The Law on the Matter:

• To allow the prosecution to present “general” evidence of tolerance, inferring that the defendant’s conduct and responses to alcohol may be in conformity therewith, would violate Due Process and the Right to a Fair Trial. To admit “tolerance” evidence violates the Constitutional presumption of innocence and reverses the burden of proof. The people have the burden of proof of all facts that point towards guilt. And to allow the prosecution to admit “general” evidence of “tolerance” without connecting it to the defendant would assume facts not in evidence.
• There are rules of evidence that probibit the character evidence of excessive drinking and prolonged drinking, because of the huge bias it forms in the mind of jurers.
• To allow “tolerance” into evidence and somehow suggest that this defendant may have the ability to mask the effects of alcohol would deny the defendant 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.)
• Take Away: The prosecution cannot “assume” facts. The prosecution cannot make this defendant a victim of profiling. If the court allows evidence of “tolerance” to alcohol, without a foundation, it would violate the policies which exclude character evidence as well as the prohibition of specific incidents of bad conduct.

A Quick Primer on Understanding Alcohol Content:

The size of a container is not the best way to measure “a” drink. To make low-risk drinking choices and avoid negative consequences as a result of drinking, we need a standard measure that will apply to different kinds of alcoholic beverages regardless of how they are served.

Beer – Most domestic beer is 4 to 5% alcohol, served in 12-ounce cans or bottles. This means an average beer contains about ½ ounce of pure alcohol.

Wine – The average table wine contains 12% alcohol, so 4 ounces of wine would contain about ½ ounce of pure alcohol.

Liquor/Distilled Spirits – One ounce of 100 proof distilled spirits would contain ½ ounce of pure alcohol.

Measured in this way – beer, wine and liquor contain about ½ ounce of pure alcohol, which is a little more than the average amount of alcohol that the body can metabolize in one hour. For this reason, that amount has become the standard for one drink. Depending on their glass or container, some “single” serving drinks may be the equivalent of two or more standard “drinks.