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Rising Blood Alcohol as a California DUI Defense

Your BAC might not have been as high as your chemical test said it was…

Prosecutors bringing DUI charges almost always rely on chemical test results. But DUI blood and breath tests results don't always paint an accurate picture. One reason is “rising blood alcohol.”

1. What is Rising Blood Alcohol?

It can take anywhere from 30 minutes to two or three hours for your system to fully absorb and metabolize alcohol.

This means that between the time you were stopped and the time you were tested, your blood alcohol content (BAC) may still have been on the rise.

As a result, even if your BAC was over the California legal limit at the time of your chemical test, it might actually have been below the limit when you were behind the wheel.

2. Why Does Rising Blood Alcohol Matter?

California Vehicle Code 23152b makes it illegal to drive with a BAC of .08% greater – whether or not you were not actually impaired.

It is a rebuttable presumption that you were driving with a BAC over the legal limit if:

  • A chemical test registered a BAC of .08% or greater, AND
  • The test was administered within three hours of your arrest.

This means that the burden is not on the prosecution to prove that you were over the legal limit when you drove.  It is on you to prove affirmatively that you were not.

3. How Do I Prove I Had Rising Blood Alcohol?

The rising blood alcohol defense usually requires expert testimony. An expert witness in toxicology will examine the various applicable factors. He or she will then extrapolate to determine your BAC at the time you drove.

4. Factors Affecting Alcohol Absorption

The precise rate of alcohol absorption varies from person to person and situation to situation. Factors that influence it include:

  • Your gender (men metabolize alcohol more effectively than women),
  • Your weight,
  • Your individual metabolic rate,
  • Your tolerance,
  • How much you drank,
  • How quickly you drank,
  • Whether the beverage you drank was carbonated,
  • Whether you also had drugs in your system, and
  • Whether you consumed the alcohol with food.

Our Southern California DUI lawyers have seen innocent people accused of DUI... just because law enforcement and prosecutors ignored their rising blood alcohol.

Fortunately, we understand rising blood alcohol and other California DUI defenses. We have an excellent record defending clients against charges of DUI throughout Los Angeles, Orange, San Bernardino, Riverside and Ventura Counties.

Contact us for a free consultation to find out how we can help you. Don't let a "bad" chemical test alone convict you of DUI.

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DUI cases are rarely hopeless. DUI convictions are almost never inevitable. Clients retain our California DUI defense attorneys for one reason: they want to fight the case. And win.

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The police arrested you for DUI. You gave a blood or a breath sample. The DUI officer confiscated you drivers license. The police released you with a notice to appear in court in a few weeks. Where do you go from here? Our lawyers are here to guide you step by step.