Overview of Rising Blood Alcohol Defense

When you hire a good attorney in a DUI case, you will find they can use evidence as a way to get your charges reduced or even dismissed. There are many factors that contribute to conviction in a DUI case and one strong piece of evidence is the measured amount of alcohol in your blood or BAC. If field sobriety tests report a BAC of .08% or higher, it is considered illegal and can be incriminating evidence in a DUI case. A good lawyer will argue something called  ‘rising blood alcohol’ and say that the BAC was not true to the test while driving. Let’s take a closer look at this potential defense for a DUI.

What is Rising Blood Alcohol?

Our bodies metabolize food and beverages differently. When we drink alcohol, a small percentage enters our blood stream and causes intoxication. The BAC slowly rises and then plateaus if the individual stops drinking. As the alcohol is eliminated, the BAC returns to zero. The rise happens immediately upon consumption of alcohol and only rises slowly.

How Can Rising Blood Alcohol be Used as a Defense?

When a law officer pulls over an individual under suspicion of DUI, he has to go through certain motions before administering the field sobriety tests. These motions include running the plates, registration, license, etc. This can take some time and all the while, an individual’s BAC could be rising before plateauing. The defendant can argue that before the tests, their BAC was under the amount of .08% and they were legal to drive. If the BAC was at or just right above .08%, it is more likely that this defense can be used successfully.

Making a Stronger Defense

There are several other factors that can influence BAC. Studies have shown that there is an average curve that most people’s metabolism of alcohol follows. In the study, most people peak with the highest BAC level at roughly five hours after consumption of alcohol. If you drive an hour or two after or seven or eight hours after consuming an alcoholic beverage, your BAC isn’t at its highest level. If you can prove the time you drank and the time you were pulled over, you could strengthen the defense. 

Another thing to consider is your gender. Studies show that men and women have different absorption rates. Men tend to have more body water than women making it more difficult for men to get intoxicated. The alcohol is diluted by body water so women get intoxicated faster. A defendant who is a woman can argue that her BAC was much lower previous to the results of the sobriety tests and she should be considered for a dismissal based on the time lapse between driving and the test.

What Steps are Taken in a Rising Blood Alcohol Defense?

There are several things that need to happen if a defendant wants to pursue the rising blood alcohol defense. A good attorney will seek out a toxicology expert to study the evidence from field sobriety tests performed on the defendant. Considering factors such as age, gender, timing of consumption, and driving time, a good toxicologist can offer a retrograde extrapolation analysis. This could potentially demonstrate how the defendant’s rising BAC was most likely within legal limits during the driving time.

If the defense is strong in their case, it is possible that the prosecution could reduce the charges. If the charges are reduced, your record will not be as damaged and the penalties could even be much less severe. This is why it is important to find a good attorney like those at H Law Group to fight for your rights and protect your record.


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