Rising Blood Alcohol Defense
If you drank alcohol shortly before being pulled over by the police your blood alcohol content (BAC) may have been below .08% at the time of driving, even if it was above .08% at the time of the chemical test. Accordingly, you may have a defense against a charge under V.C. Section 23152(b). That is because it takes time for alcohol to be absorbed into the blood stream and impair your diving. Since V.C. Section 23152(b) reads “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” the prosecution must prove that your BAC was at least.08% at the time of driving. If you drank alcohol shortly before being pulled over that alcohol may not have been absorbed into your blood stream at the time of driving; rather, it was absorbed while you were pulled over not driving shortly before the chemical test.
The rising blood alcohol defense goes as follows:
You drank alcohol shortly before being pulled over by the police. Some time later you took a chemical test which reported a BAC of .08% or higher. However, it takes time for alcohol to be absorbed into the bloodstream, and chemical tests only measure BAC at the time of the test, not the time of driving. Since you drank alcohol shortly before being pulled over, but took the breath test some time later, your actual BAC was below .08% at the time of driving but later rose to at least .08% while you were pulled over and not driving due its recent ingestion and absorption over time into the bloodstream. Accordingly, the prosecution cannot rely on the breath test result to prove beyond a reasonable doubt that your BAC was .08% at the time of driving.
Your Statements Can Damage Your DUI Defense
Your statements to the police may jeopardize the rising blood alcohol defense. If you tell the police you had 4 beers and your last beer was ingested 2 hours ago there has been plenty of time for the alcohol to be absorbed into your blood. To succeed with the rising blood alcohol defense in this situation your DUI lawyer will have to show that your statement to the police was not true. To substantiate that claim the reason why you were pulled over should be evaluated. Were you swerving or was your taillight just out? Swerving indicates impairment behind the wheel and works against the rising blood alcohol defense. However, a taillight being out is not related to drunkenness and may at least show that your conduct while driving did not indicate impairment. Likewise, your performance during the field sobriety test will weigh upon whether you were drunk while driving. If these is a steady worsening in your performance it may support the rising blood alcohol defense. Furthermore, the timing of alcohol related charges to your credit or debit card before driving can either support or detract from the rising blood alcohol defense.