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The ‘Rising Blood Alcohol’ Defense in a DUI Case

If you were drinking before you got pulled over, the case may seem pretty cut and dried in your eyes, but to an experienced legal defense team, your arrest is just the beginning. You see, DUI defense attorneys understand the law, and they know how to make it work for their clients. A BAC of 0.08% or higher is, of course, above the legal limit of intoxication, but what happens if you weren’t actually at 0.08% at the time of driving?

If you were experiencing a ‘rising blood alcohol’ when you got pulled over, an experienced DUI attorney will be able to make a case in your favor.

In many situations, people who are arrested for a DUI aren’t subjected to blood or urine tests until much time has passed. In some situations, hours go by before people submit blood samples. Time tells a tale in the case of many DUIs because drinks don’t immediately begin to effect the mental processes. As the alcohol comes into the body, it’s taken through the system, visiting cleansing organs such as the liver on its way to entering the bloodstream. If you had consumed drinks a short time before you were pulled over, your body may not have processed the alcohol yet, which means you very well may have been below the legal limit when you were pulled over. If you sat in the police station for a few hours, your BAC would have been quite different when you gave a blood or urine sample than it would have been when you were arrested.

How the Body Metabolizes Alcohol

Generally speaking, the body can metabolize about one drink per hour. This means the liver can take the alcohol into its processing center, clean it out, and turn it into urine without becoming overwhelmed and sending it to your brain, which is where inebriation occurs.

Drunkenness doesn’t happen immediately. The alcohol goes into the body, goes through the system, and if you’ve had more than the liver can metabolize, it gets sent into the bloodstream to your brain. At that point, your BAC will rise and eventually hit a peak. Your system will burn off the alcohol at about 0.02% per hour and your BAC will level out back at zero as you sober up.

In other words, if you took some drinks before you started driving, your body may not have caught up with this process yet, and the BAC peak may have occurred well after you were arrested.

How DUI Defense Attorneys Prove ‘Rising BAC’

The attorneys on the prosecution’s side will present your breathalyzer and blood sample results in court, which will obviously be above the legal limit. However, it’s important to note that these analyses only dictate the driver’s BAC when the test was actually taken. If you were experiencing ‘rising BAC’, the outcome of the analysis may show you were at or above 0.08%, but your defense team will go to work to establish a timeline that reflects the fact that your BAC was actually under 0.08% BAC when you were arrested.

If your DUI attorney can establish the fact that your BAC was under 0.08% at the moment you were pulled over, you may have grounds to dismiss your DUI case.

Toxicology Experts

Defense attorneys often call upon the expert testimony of toxicology professionals who analyze blood samples submitted for evidence, which enables them to figure out the driver’s actual BAC content when he or she was pulled over. Toxicology experts look at a number of factors, including your:

  • Age
  • Sex
  • Weight
  • The number of drinks you’d consumed before you were arrested (which could mean beer, liquor, or wine)
  • The time at which you consumed the alcohol
  • Breathalyzers (Preliminary Alcohol Screening Test) near the time of the arrest (if they’re available) and / or admissible for the defense challenge.

From this information, toxicology experts perform retrograde extrapolation analyses to show a defendant’s blood alcohol rose past 0.7% after he or she was arrested.

In some situations, the outcome of the preliminary alcohol screening (PAS) test that were taken near the time of the initial arrest are below those of the official blood or breath test taken later. This is clear evidence that the driver was experiencing ‘rising blood alcohol’ at the time of driving.

Expert Testimony

The prosecution will bring forth experts, who will present his or her own evidence against ‘rising BAC’ situations. Your defense team will have the opportunity to interrogate these experts and poke holes in their statements.

The Outcome of ‘Rising Blood Alcohol’ Defenses

If your DUI defense attorney is experienced and respected by the prosecution, and is able to present a strong case of ‘rising blood alcohol’, he or she might get your charges dropped or reduced to something like a “wet reckless”, “dry reckless”, or an excessive speed violation.

If you’ve been arrested for a DUI in the Los Angeles area, reach out to California DUI attorney Jon Artz immediately. Jon has been helping his clients achieve optimal solutions to their DUI situations for decades, and he’ll do the same for you. You can reach Jon 24 hours a day, seven days a week at (310) 820-1315. You’re also welcome to fill out an online form and someone from his office will be with you as soon as possible.


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