Rising Blood Alcohol as a California DUI Defense

Your BAC might be lower than it appears... "rising blood alcohol" could explain why.

Prosecutors bringing DUI charges almost always rely on chemical test results obtained by law enforcement that supposedly demonstrate intoxication ... many times that reliance is total. In the words of our Los Angeles DUI Lawyers, that's why successful challenges to chemical tests can "torpedo" the prosecution's case.

Our Los Angeles DUI Lawyers explain that the chemical testing methods law enforcement officers typically use are flawed to begin with. Additionally, however, these tests remain vulnerable to challenge even in cases where they perform as well as they possibly can. In some cases, this allows us to use rising blood alcohol as a California DUI defense.

Understanding how rising blood alcohol as a California DUI defense makes chemical test results vulnerable to challenge is not difficult. All you need to know is the accuracy of breath test relies so much on timing.

First, there is the time during which the defendant was driving prior to being stopped by law enforcement. This is important because a defendant can only be convicted of a California DUI charge if the prosecution proves he was "under the influence" at a specific time when he was driving.

Second, there are the specific times the defendant submitted to chemical testing after being stopped by law enforcement.

Thus, even though it must be proven that the defendant was "under the influence" when he was driving, the prosecutor only has chemical tests that were taken later. This is significant because an alcoholic drink will not show up in chemical testing immediately after a person consumes it. Nor will it immediately intoxicate a person. Rather, an alcoholic drink must pass through 15 digestive processes before it hits the bloodstream and imposes intoxicating effects. This process is called "absorption." And during absorption, BAC rises.

The following example illustrates how rising blood alcohol as a California DUI defense can call chemical tests into question. Assume the following facts:

• A driver, John, "blows" a .08% BAC into a mobile breathalyzer during a traffic stop on the side of the road. The time is 9:00 p.m.



• After being arrested for suspicion of DUI, John blows a .12% BAC into a police station breathalyzer. The time is now 9:45 p.m.



• Thus, according to law enforcement chemical testing, John's BAC rose .03% in 45 minutes between the roadside test and the police station test.



• Logic and commonsense indicate the following: John's BAC was rising after the arresting officer pulled him to the side of the road, therefore it must have been rising beforehand, too.

The point is that John's BAC was almost certainly below .08% while he was driving because his system had not yet absorbed all the alcohol he had consumed. It was still rising. Driving with a BAC of .08% is not illegal... regardless of whether alcohol already consumed shows up in later testing.

The example above offers a simple scenario in order to offer a basic understanding of rising blood alcohol as a California DUI defense. Be aware, though, it has additional sophisticated aspects that call law enforcement chemical tests into question in other ways, as well.

Bottom-line: just because someone is arrested for DUI with a "bad" BAC, she should not assume the prosecution has an open-and-shut case for conviction. Instead, she should consult with one of our Los Angeles DUI Lawyers experienced in challenging chemical tests to see what might be done.