Rising BAC is a DUI defense that says you weren’t drunk while you were driving—even if you were drunk by when the police administered a chemical test. This is because alcohol takes time to be absorbed into the body, so your blood alcohol concentration (BAC) was still “rising.”
Understanding Rising BAC
Most of us think that the more you drink, the drunker you get—and that you stop getting drunker once you stop drinking. In reality, this isn’t exactly true.
When you consume an alcoholic drink, the alcohol begins to be absorbed into your body almost immediately. But the process is gradual. Your stomach and small intestine begin to digest the alcohol and it’s absorbed through the intestinal membranes into the bloodstream. Only once it’s in the blood do you start to feel “buzzed” or drunk. This takes time.
Your liver’s job takes even longer. Once alcohol is in your blood, you will remain intoxicated until the liver can break it down. But this takes hours—far longer than it takes to get drunk. This is why you can drink in the evening, go to bed, and still feel mildly buzzed in the morning.
Together, these two factors mean you keep getting drunker long after you stop drinking. The alcohol from your last few drinks is still entering the blood stream, and the liver hasn’t gotten any of the earlier alcohol out yet.
(Importantly, this means that waiting an hour to drive after you’ve been drinking does not make you safe to drive—it can actually make things worse.)
Some factors can cause this process to go on even longer. If you drink after a eating a meal, for example, your body absorbs alcohol much more slowly. This is because there’s already so much content inside the small intestine that alcohol does not get broken down as quickly, nor absorbed into the blood as fast. This is a recipe for rising BAC.
How Rising BAC Affects a DUI Case
For adults 21 and older, the law defines DUI as driving with a BAC of 0.08% or more. Normally, police assess your BAC by using either a breath test (Breathalyzer), a blood test or both. But how long after they pull you over do they wait to administer the test? What if your BAC keeps rising while they wait?
In some cases, this time difference can be crucial to your case. It could mean that even though you tested over 0.08%, you were below the limit while you were driving.
There is nothing illegal about an adult driving with a BAC of 0.06 or 0.07% unless they drive in a reckless or dangerous manner, or show symptoms of intoxication. If there’s a chance that rising BAC was a factor in your DUI arrest, you could have a solid defense for your case.
Success as a DUI Defense
Rising BAC defense has been used successfully in many DUI cases. However, it won’t work in every case. It works best under certain conditions. These include:
- Close to the legal limit. BAC does keep rising after you stop drinking, but there are limits. For example, if you were shown to have a 0.17% BAC—more than twice the legal limit—then rising BAC is not a factor in your case. Your BAC may have been rising, but you were over the limit regardless. Rising BAC works best in cases where you were relatively close to the legal limit, in the 0.08 to 0.11% range.
- A delay before testing. BAC is unlikely to make a big difference unless police waited to test you. For example, if they pulled you over, ran field sobriety tests, had you wait on the roadside, then finally arrested you—and still kept you in a cell for an hour before administering a breath or blood test—then there was a big delay. Your BAC almost certainly rose during that period.
- No aggravating factors. If there are clear signs you were intoxicated, such as swerving, slurred speech, etc., then rising BAC is a less effective defense. This is because the prosecution will build a case that you were intoxicated regardless of your actual BAC level.
Could Rising BAC Be a Factor in Your DUI Case?
A rising BAC defense can make the crucial difference between conviction and freedom. The best way to find out whether it could work in your case—or what other defense strategies might help more—is to talk to a qualified DUI lawyer.
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