Alcohol Tolerance is Not Relevant in a Michigan DUI Trial

by baronedefensefirm on November 13, 2010

As was pointed out in a prior article, during a Michigan DUI trial some prosecutors may hint at, attempt to elicit testimony about, or perhaps even simply argue that the defendant is tolerant to alcohol.  What follows is an explanation as to why the existence or non-existence of alcohol is not relevant during a Michigan DUI trial.

Evidence must be relevant in order to be admissible and all irrelevant evidence must be excluded.[i] To be relevant, a statement or evidence about the defendant’s tolerance would have to satisfy two requirements.  First, it would have to be material; meaning it must be of consequence to the pending actions.  Second, it must have probative force; meaning it must make a fact more or less probable.[ii]

As has been demonstrated from review of scientific literature, the term “tolerance” is one of art specific to the fields of toxicology and behavioral psychology.  Although a population who is tolerant to alcohol may well exist; this fact does not change the likelihood that a particular defendant is or is not tolerant.

Additionally, as has been shown above, it is clear that a person can be metabolically tolerant yet not be behaviorally tolerant.  In consideration of this fact, the court must ask: “to what fact of consequence to the matter does alcohol tolerance make more or less probable than without the evidence?”[iii]

In a drunk driving case, the crime charged is “OWI,”[iv] which of course means “Operating While Intoxicated.”  To prove this charge, the prosecutor has two available theories; the defendant was either OUIL or UBAL.[v] To be OUIL means that as a result of the drinking or taking of a controlled substance, the defendant was substantially deprived of normal control or clarity of mind.[vi] To show that the defendant was “substantially deprived” a prosecutor will normally rely on the observations of the police officer or other witnesses who would testify that defendant appeared drunk.[vii] This typically consists of a description of the field sobriety tests or any other such observations.  Thus, if a defendant “passes” the field sobriety tests this may well mean, tolerant or not, that her ability was not substantially lessened.  For this theory, the reason a defendant passes the tests is simply not relevant, even if the reason for passing is that the defendant is tolerant to alcohol.

On the other hand, if a defendant is UBAL, meaning having a bodily alcohol content (BAC) above the legal limit of .08%, then tolerance is likewise irrelevant, because it does not matter if the BAC impacted the operation in any way.[viii] Even assuming some people can be shown to be either metabolically or behaviorally tolerant; this topic of inquiry is still immaterial in a drunk driving case because it makes no fact necessary to the case more or less probable.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!

[i] MRE 401 & 402

[ii] People v. Mills, 450 Mich. 61, 67-68, 537 N.W.2d 909 (1995) (citations omitted).

[iii] MRE 401

[iv] MCLA 257.625 et. seq.

[v] Id.

[vi] People v Raisanen, 114 Mich App 840,844,319 NW2d 693 (1982); People v Kelley, 60 MichApp 162,230 NW2d 357 (1975); MCL 257.625(1).

[vii] See, e.g., CJI 15.5

[viii] CJI 15.5(5).


This post was written by...

– who has written 204 posts on Michigan Drunk Driving Lawyers.

Patrick T. Barone is the author on two books on DUI defense including the well respected two volume treatise Defending Drinking Drivers (James Publishing), and The DUI Book – A Citizen’s Guide to Understanding DUI Litigation in America. He is also the author of a monthly DUI defense column for the Criminal Defense Newsletter, published by Michigan’s State Appellate Defender’s Office. Mr. Barone is an adjunct professor at the Thomas M. Cooley Law School where he teaches Drunk Driving Law and Practice. He is also on the faculty of the Criminal Defense Attorney’s of Michigan’s Trial Lawyer’s College where he provides trial skills training to Michigan’s criminal defense practitioners. Mr. Barone lectures nationally on various DUI defense topics, and he has appeared in newspapers, on television and on radio as a drunk driving defense expert. Mr. Barone has been certified as an instructor and practitioner of the Standardized Field Sobriety Tests and has also attended a 24-hour certification course at National Patent Analytical Corporation (the manufacturer of the DataMaster) and has thereby been deemed competent by the manufacturer to operate, perform essential diagnostic verifications and calibration checks on the DataMaster. Mr. Barone is a Sustaining Member of College for DUI Defense. Mr. Barone is the principal and founding member of The Barone Defense Firm, whose practice is limited exclusively to defending drinking drivers. The Firm is headquartered in Birmingham, Michigan.

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