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Rising Blood Alcohol is a Defense to California DUI


Alcohol enters the blood stream after it is ingested through the walls of the stomach and the lower intestines. This process is called absorption. During absorption, a person’s blood alcohol content will continue to rise until it “peaks.” The alcohol is then slowly eliminated from the body.

Generally, alcohol takes 50 minutes to fully absorb into the body after a person stops drinking. It may, however, take as long as three hours and may be affected by food in the body, the type of alcohol consumed, and how quickly the alcohol was consumed.

As a result, if charted, the absorption rate will look like a lopsided bell curve.

If a person’s blood alcohol content is determined, either through a blood test or a breathalyzer, before the peak of absorption, the blood alcohol content is still “on the rise” and hence the name of the defense. If only one test is done and only one BAC level determined, there is no way to know where on the absorption curve the person was at the time of the test. However, if two tests are done, a California DUI attorney may be able to establish that the alcohol was on the rise.

How does this help with fighting a California DUI charge?

To be guilty of California Vehicle Code section 23152(b), the prosecutor must prove that the person was at a BAC level of 0.08 percent or above at the time he or she was driving.

If a person’s BAC level was still rising at the time of a test, it may be that their BAC level was below a 0.08 percent at the time they were driving.

Maybe this will make more sense with an example.

Say a person is pulled over at midnight on suspicion of a California DUI. After the stop and some questions, maybe some field sobriety tests, a preliminary alcohol screening (PAS) test is conducted. By this time, it’s now 12:20am. The PAS test shows a BAC level of 0.10 percent. Another test is done at 12:45am. The test now shows the BAC level at 0.14 percent. This is a rise of 0.04 percent in only 25 minutes (going backwards in time, a decrease of 0.04 percent in 25 minutes). Thus, working backwards from the time that the first test was done, it is possible that the BAC level at the time the person was driving was at 0.06 or lower.

Although this may successfully defeat a charge of California Vehicle Code section 23152(b), a person may still be found guilty of a California DUI if they were “driving under the influence” under section 23152(a).

The post Rising Blood Alcohol is a Defense to California DUI appeared first on Law Offices of Taylor and Taylor - DUI Central.

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