Defenses to Driving Under the Influence: What is a “Rising BAC” Defense?
June 16, 2015
Rising BAC defense
Depending on the circumstances surrounding your arrest, you may have had a BAC lower than .08 at the time you were driving

It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING — not at the time of being TESTED. Because it can sometimes take between 45 minutes and 3 hours for alcohol to be absorbed into the system, an individual’s BAC may continue to rise for some time after he is stopped and arrested.

Rate of Absorption

Commonly, it is an hour or more after the stop when the blood, breath or urine test is administered on the suspect. Assume that the result is .10%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .07%. In other words, the test result shows a blood-alcohol concentration above the legal limit — but his actual BAC at the time of driving was below.

However, if a person is intoxicated while driving and is stopped, and is no longer absorbing alcohol, as time elapses his blood alcohol level would begin to fall, which means that any results from a blood, urine or breath test may be less than what the actual BAC was at the time the suspect was driving.

Factors Causing Rising BAC

The rate of absorption of the alcohol, or timing of absorption, will vary greatly from person to person. This is due to many personal factors, including how much food a person had in his or her stomach at the time of the drinking, how much alcohol the person drank, and even the shape of the person’s stomach (which affects how quickly and efficiently food and liquids leave the stomach). This is why officers always ask exactly how many drinks were consumed, and most importantly, WHEN.

The prosecution can rely on a piece legislation that creates a presumption that the BAC level found at the time of testing was the same as when driving, as long as the test is done within 3 hours. This puts the burden on the Defendant to prove that the BAC was rising.

Call Wallin & Klarich Today If You Have Been Charged With DUI

If you or a loved one is being charged with a DUI, you need an attorney who knows the law and who will fight for you in your criminal matter, but who is also aware of the consequences that may arise in regards to your driving privilege. The experienced California DUI defense attorneys at Wallin & Klarich will fight on your behalf to work toward the best possible outcome in your case. Call us at (877) 466-5245 for more information.

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