If you are pulled over and suspected of DUI in California while your body is still absorbing alcohol, your blood alcohol concentration (BAC) will continue rising after your arrest. This can lead to inaccurate measurements and potentially nullify any DUI charges brought on you.
Any breathalyzer test or blood test given at this time or later will not accurately reflect how drunk you were while driving. This is what we call the “rising alcohol defense.” A strong Los Angeles DUI attorney can help you use this defense to win your DUI case on your behalf.
Understanding Alcohol Absorption
When you have a drink, the alcohol is not all absorbed into your body at once. Instead, it’s absorbed slowly, and only the amount of alcohol in your blood (your BAC) affects how intoxicated you are, not the alcohol in your stomach.
When you drink, your BAC will slowly rise, plateau for a while, and then fall again as your body eliminates the alcohol. This is why you sometimes feel drunker after you’ve stopped drinking. In some cases, it can take up to 2 hours for alcohol to reach its BAC peak.
What Factors Affect the Rate of Alcohol Absorption?
Alcohol absorption rates aren’t fixed. One person can absorb alcohol much faster than another. There are several factors that affect how much alcohol you can absorb. These are the three most common.
Gender matters because men and women absorb alcohol differently. On average, women have less water in their bodies than men, which means alcohol does not get as diluted. Thus, women’s BAC typically rises faster than men’s.
Food matters because a full stomach slows the absorption of alcohol. Contrary to popular belief, a full stomach does not make you “less drunk” or prevent intoxication. However, it does slow absorption so that it takes longer to become intoxicated, and you then potentially feel intoxicated longer. This is particularly important in defending against a DUI.
How Long Ago You Started Drinking
Time matters because it’s the key to the BAC defense. If you had a drink and then immediately got in the car, your BAC probably had not risen much yet. On the other hand, if you only drove a short distance, you may never have been legally intoxicated while behind the wheel.
Rising BAC Defense Explained
The delay in alcohol absorption affects your DUI case. Under the law, it’s illegal to be intoxicated while driving. But, even if you had some drinks before getting in the car, you may have been legally sober while at the wheel. By the time police were able to test you, only much later had your BAC risen to a point where it would be illegal to drive.
When you get arrested for DUI, police often don’t take these factors into account. Likewise, prosecutors look at your breath test results and make assumptions about what happened. If you can prove that their assumptions are false, the “rising BAC” defense could win your case.
How Does a Rising BAC Defend Me from a DUI Charge?
Under California Vehicle Code (CVC) § 23152(b), driving is illegal when you have a BAC of .08% or greater. However, authorities cannot measure your BAC while you are driving. They can only measure it at the time of arrest or later.
In some cases, two or more hours go by between being pulled over and having a breath test/blood test. That means the results are wildly inaccurate.
Most California DUIs get charged under CVC § 23152(b), and the prosecution must prove your BAC at the time of driving to convict you. If you can disprove their BAC estimate, they do not have the proof they need, and you cannot be convicted.
How Can I Prove That My BAC Was Rising?
Experienced DUI attorneys will first construct a timeline of what happened: when you were drinking, how much you had, and when you were pulled over and tested. If the timeline suggests that rising BAC was a factor, they will bring in a professional toxicologist to show that your BAC must have been lower than .08% when you were pulled over.
What Kind of Evidence Can I Use to Prove My Case?
Any evidence that supports your timeline can be helpful. The most common evidence people use includes:
- Receipts from the restaurant or bar (if any) showing what food and drinks you ordered and when
- Eyewitness testimony stating that you acted sober at the time you got in your car
- A police report that does not describe any erratic or seemingly impaired driving behavior before the arrest
Your attorney can help you identify the best evidence to use. Of course, it’s always best to get solid legal representation as fast as possible while evidence is still fresh.
Do I Need a Lawyer for a Rising BAC Defense?
Fighting against your DUI charge with a rising BAC defense isn’t simple. If you don’t have good knowledge of DUI law, then fighting your case on your own can be a huge detriment. When in doubt, it’s always worthwhile to obtain professional legal help.
Don’t fight your case on your own. You shouldn’t view hiring a lawyer as an expense. It’s an investment that you make to ensure that you have a fighting chance against your charges. You could end up paying a lot more down the road without a lawyer than with one.
Consult With a DUI Lawyer Today
Regardless if you have a rising BAC defense for your DUI case in California or not, you should get in touch with a lawyer who can help you fight back against your charges. You can contact our Los Angeles DUI lawyers today to learn more about what we can do for you for a free consultation.