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Rising Blood Alcohol Defense

The “rising blood alcohol” defense can be used in a drunk driving case to show the driver may not have been over the limit at the time they were driving. This is because there may be a delay in the time between when alcohol is consumed and when it is absorbed into the body. 

A driver could have a blood alcohol level below the limit when they get into the car and still end up with drunk driving charges. During a police stop for a minor traffic violation, the driver may have admitted to having a few beers with dinner. The officer arrests the driver and takes them to the station. By the time the driver's blood alcohol content (BAC) is tested, it is over the limit. The rising blood alcohol defense may help the driver avoid a conviction for driving under the influence (DUI) of alcohol. 

Alcohol Absorption and Metabolism

There is a period between when an alcoholic beverage is consumed and when it is absorbed into the bloodstream. The time it takes to drink alcohol, absorb alcohol into the blood, and metabolize alcohol can vary, based on a number of factors, including: 

  • Weight
  • Sex 
  • Hydration
  • Food consumption
  • Liver size
  • Amount of alcohol consumed
  • Type of alcoholic beverage
  • Medication
  • Medical conditions

After drinking alcohol, the alcohol is absorbed through the stomach and the intestines. After the alcohol is absorbed, it is carried through the bloodstream to the brain, where some of the impairing effects occur. Over time, enzymes break down alcohol into other compounds, which can be processed by the body and eliminated. 

In general, alcohol takes effect between 30 minutes to an hour after consumption. For some people, it may take even longer. According to research published by 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.”

A driver could have a few glasses of wine and drive home before the BAC is at the peak level. If a driver is pulled over shortly after drinking, their alcohol level may continue to rise for another hour, even after they stopped drinking. With a rising blood alcohol level, the driver's breath or blood test would likely show a BAC that is higher than the level when the driver was behind the wheel. 

Time Between Driving and Testing

There may be a considerable amount of time passing between driving and blood or breath chemical tests. The traffic stop alone may take 30 minutes or more. During the traffic stop, the officer may question the driver, ask the driver for a preliminary alcohol screening (PAS) test, ask the driver to perform standardized field sobriety tests (SFSTs), before finally placing the driver under arrest. 

After an arrest, the driver has to be transported to the police station, fingerprinted, photographed, and processed. After an arrest, the driver will generally submit a breath sample or a blood sample for chemical testing. However, by the time they submit a chemical test, an hour or more may have passed and the driver could be at their peak BAC. This number may not be representative of their BAC at the time of driving.  

DUI Defense Strategies

The prosecutor has the burden of proof in a criminal case. The prosecutor has to prove all elements of the offense “beyond a reasonable doubt.” If you can give rise to doubt in only one element, the jury should not find the defendant guilty. A “rising blood alcohol” defense could make the jury doubt that you were over the limit when you were driving. 

Under California Vehicle Code 23152, the elements in a per se DUI include: 

  1. The defendant drove a vehicle; AND 
  2. When he or she drove, the defendant's blood-alcohol level was 0.08 percent or more by weight.

Your criminal defense attorney can use your BAC test and the arrest record to show what your BAC was likely to be at the time of arrest. If your BAC test was just at or above the limit (0.08% for most drivers), that may weaken the prosecutor's case. This could be a legal defense option in your criminal trial. 

Your attorney could also use the rising blood alcohol defense in negotiations with the prosecutor. A strong defense could increase your bargaining power. You may be able to plea down to a wet reckless, or other reduced charges. Talk to your criminal defense lawyer about the best legal defense strategies in your case. 

Contra Costa County DUI Attorney Representation

If you are arrested anywhere in Contra Costa or Alameda counties, Lynn Gorelick is familiar with the DUI laws and DMV regulations. With over 37 years of DUI experience, Lynn Gorelick understands how a DUI will affect your driver's license and ability to get around. Contact our office today for help with your DUI.

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