What is the Rising Blood Alcohol Defense?

What is the Rising Blood Alcohol Defense?

You may have heard someone was acquitted in a drunk driving / DUI case because his blood alcohol was on the rise. What exactly does that mean? What does that defense entail?

When alcohol is consumed, it takes time for it to enter the bloodstream. Impairment is not instant. Alcohol must reach the brain before there are any mental and ensuing physical impairments that ultimately affect operating a vehicle.

How Fast Does Alcohol Affect Your Ability to Drive?

How fast one is placed under the influence depends on numerous factors. Age, gender, weight, health, metabolism rate, type and amount of alcohol, how much food and when, mood, medications, tolerance, and a host of other variables affect how rapidly one goes under the influence of alcohol or ethanol.

A small portion of the alcohol enters the blood stream through the lining of the mouth and then the stomach. As the contents of the stomach are emptied, the majority of the alcohol enters the blood stream through the small intestine. The alcohol gets absorbed into the system, but it is not yet uniform throughout the body.

Some time after drinking has ceased the alcohol gets fully absorbed in the bloodstream and reaches equilibrium. That means the blood’s alcohol content is uniform throughout the body. Until that happens, any sample taken is not reliable. The blood’s alcohol content must be the same or uniform regardless of whether it’s located in our pinky finger or our big toe.

Pattern of drinking is crucial to this defense as it will indicate whether or not the alcohol consumed was fully absorbed.

Alcohol gets eliminated from the system at a somewhat constant rate of .02 per hour.

When Can You Use the Rising Blood Alcohol Defense?

In California, the charge of driving under the influence requires the government to prove impairment, and/or BAC (blood alcohol content) of .08 or above, at the time of driving and NOT at the time of testing. One has to be under the influence, or be .08 or above, at the time of operating their vehicle and not at a later time when a chemical test is being performed.

Rising blood alcohol defense can be persuasive when a person has been stopped a short time after drinking. It takes time for alcohol to enter the blood stream and to increase the BAC. While the blood alcohol concentration is on the rise, expert testimony can very well place one’s BAC lower than .08 at the time of driving.

It may sound counter-intuitive, but downing a couple of shots 10 minutes prior to being pulled over puts us in a better position than having had a few drinks throughout a longer time period.

Of course, much of this defense depends on various factors and no two situations are the same. But generally speaking, if one’s blood alcohol level is on the rise at the time of driving, this defense can be quite effective.

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© Sol Danny Khorsandi, Esq. All rights reserved.

Categories: DUI Defenses

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