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Is High Tolerance a DUI Defense?

Alcohol affects different people in different ways. Weight, sex, and medications can change the way people process and react to alcohol. Heavy drinkers who have a “high tolerance,” may think they can drive fine after having a few drinks because they don't feel impaired. However, you can still get a DUI with a BAC that is over the limit, even if you are driving fine.

There are several legal defenses available to California drunk driving charges but claiming a high tolerance may not be your best bet. If you want to know about how you can avoid a criminal conviction or jail time after an Oakland DUI arrest, talk to your experienced East Bay DUI defense lawyer for help. 

Two Ways to Get a DUI in California

Even though most people think of driving under the influence (DUI) as just drunk driving, the California impaired driving law has more than one way to charge a driver with a DUI. Under California Vehicle Code Section 23152

  1. It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.
  2. It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

Impaired Driving 

Generally, part a) means the driver was under the influence of alcohol where their mental or physical abilities are impaired. Impaired driving means the driver is no longer able to drive with the caution of a sober person using ordinary care. Evidence of impairment may be based on the police officer's testimony or dash cam footage showing the driver was violating traffic laws or driving unsafely. 

Over-the-Limit DUI or Per Se DUI

Part b) of the charge does not require proof of impaired driving. It only requires showing the driver's blood alcohol concentration (BAC) was over the legal limit. If your BAC is over the legal limit, you can get a per se DUI even if you appear to be driving safely. 

The “limit” for driving can be different for different drivers. For most drivers, the limit is 0.08% BAC. For drivers under the age of 21, an under-21 DUI infraction is driving with 0.05% BAC or higher. For commercial drivers with a CDL, they also have a 0.04% BAC limit. Drivers on probation for a DUI and zero-tolerance under-21 violations have a BAC limit of only 0.1%.

BAC in a Driver With High Tolerance

When drinking alcohol, alcohol is absorbed by the body through the stomach and the intestines. The alcohol is then carried through the bloodstream to the brain. Alcohol has impairing effects on the brain, which can include mental and physical presentations, including delayed reaction times, impaired judgment, and visual impairment. Over time, the body breaks down the alcohol into other compounds, which are released through urine, sweat, and other ways.  

Drivers with a high tolerance for alcohol may not feel the same way as a first-time drinker but that may not matter when it comes to your BAC. The chemical testing involves looking at the level of alcohol in the blood. However, there are several factors that can impact a driver's BAC, including: 

  • Alcohol consumed
  • Time period
  • Hydration 
  • Metabolic rate
  • Sex 
  • Type of build
  • Percentage of body fat
  • Food consumption
  • Time since last drink
  • Type of alcoholic drink
  • Percentage of alcohol in the drinks

In general, the effects of alcohol begin about 30 minutes to an hour after drinking. According to the National Institutes of Health (NIH), “the speed at which people absorb, distribute, and metabolize alcohol varies as much as three or four times between individuals.” 

All of these factors can make it very difficult to estimate when a driver is just over or just under the limit. A driver could use a portable breathalyzer device to estimate their BAC but these can be inaccurate.

Claiming High Tolerance as a Defense

Even if you are convinced you have a high tolerance and should not be held to the same standards as other drivers, you would have to convince a jury that you did not get a DUI. Most jurors may not be very sympathetic to someone who claims they drink a lot and can drive just fine. This may imply that this arrest was not the first time the defendant may have driven while impaired.

Rising Blood Alcohol

A possible defense strategy may include the “rising blood alcohol” defense. There can be a delay between the time when alcohol is consumed and when it is absorbed into the body. That means a driver could have a BAC below the limit when they are driving but 30 minutes later, their BAC may have increased to over the limit. 

This type of defense may be more convincing if the driver's BAC was just at or above the limit. If you want to know about the best defense available in your case, talk to a licensed California lawyer about your situation. 

Challenging the Chemical Test Results

A driver who does not feel impaired may be surprised to see a chemical breath test showing a BAC that is over the limit. However, these tests are not always 100% accurate. This is why it is important to talk to an East Bay DUI defense lawyer about your case because they may be able to challenge the chemical test results

Just because the police and prosecutors rely on these chemical tests, there can still be problems that result in inaccurate test results, including human error and machine errors. The machines may not be properly calibrated, maintained, or operated to ensure they are as accurate as possible. Police officers can also make mistakes in how they administer or maintain these chemical tests. 

Most California drunk driving arrests require the driver to submit to breach testing after arrest. The chemical breath test takes a sample of the driver's breath to evaluate the levels of alcohol in the blood. A roadside preliminary alcohol screening device (PAS) is not required during a traffic stop but drivers have given their implied consent to testing after an arrest. Drivers who refuse to submit to a chemical test can face a license suspension and even jail time. 

East Bay DUI Attorney 

East Bay attorney Lynn Gorelick has more than 38 years of DUI experience and understands the defenses that work in a California DUI case. Representing drivers and their families in Oakland and Alameda County, Lynn Gorelick is familiar with the local DUI laws, and the local officers and prosecutors involved. Contact East Bay DUI lawyer Lynn Gorelick today.

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