When most people think about fighting a DUI charge, they imagine challenging the traffic stop, questioning the officer's conduct, or disputing the accuracy of a breathalyzer machine. These are all legitimate and frequently used defense strategies. But there is another defense that is less widely understood yet can be remarkably effective in the right circumstances — the rising blood alcohol defense. If you were arrested for DUI in Corona Del Mar, CA, this defense may be worth exploring with an experienced criminal defense attorney.
Understanding How Alcohol Is Absorbed by the Body
To understand the rising blood alcohol defense, it helps to first understand how alcohol moves through the human body. After you consume alcohol, it is not immediately absorbed into your bloodstream. Instead, it passes through your stomach and into your small intestine, where absorption occurs gradually. Depending on a variety of factors — including whether you have eaten recently, your body weight, your metabolism, and the type of alcohol consumed — it can take anywhere from 30 minutes to two hours or more for alcohol to reach its peak concentration in your bloodstream.
This process is known as the absorption phase, and it has significant legal implications for DUI cases in California.
What Is the Rising Blood Alcohol Defense?
California's DUI law makes it illegal to drive with a blood alcohol concentration of 0.08% or higher. Critically, the law is concerned with your BAC at the time you were driving — not at the time you were tested. Because chemical testing typically occurs some time after a driver has been stopped, there is often a gap of 30 minutes to an hour or more between when you were behind the wheel and when your BAC was actually measured.
The rising blood alcohol defense argues that at the time you were driving, your BAC was actually below the legal limit — but that by the time testing occurred, your body was still in the absorption phase and your BAC had continued to rise, pushing the reading above 0.08%. In other words, the test result does not accurately reflect your level of impairment while you were actually operating the vehicle.
When Does This Defense Apply?
The rising blood alcohol defense is not a one-size-fits-all argument. It is most applicable in specific circumstances. If your BAC reading was close to the legal limit — for example, 0.08% or 0.09% — the argument that your BAC was still rising at the time of the test carries more weight than it would in a case with a much higher reading. The defense is also strengthened when there is evidence that you consumed alcohol shortly before driving, when the gap between the stop and the chemical test was significant, and when your observed behavior at the time of the stop did not suggest obvious impairment.
An experienced DUI defense attorney will examine the timeline of events carefully — when you last consumed alcohol, when you were stopped, when field sobriety tests were administered, and when the chemical test was conducted — to determine whether the rising BAC argument is viable in your specific case.
Challenging the Prosecution's Expert Testimony
In cases where the rising blood alcohol defense is raised, prosecutors will often bring in an expert witness to argue that the defendant's BAC was already above the legal limit at the time of driving. Your defense attorney can counter this with independent expert testimony and by challenging the assumptions built into the prosecution's calculations. The science of alcohol absorption involves enough variables that these arguments can be genuinely effective when presented by a knowledgeable attorney.
Law Office of Michael L. Fell Can Evaluate Your DUI Defense Options in Corona Del Mar
Law Office of Michael L. Fell has the experience and scientific understanding to evaluate whether a rising blood alcohol defense or any other strategy applies to your DUI case in Corona Del Mar. Attorney Fell scrutinizes every detail of the evidence to build the most effective defense possible. Call (949) 585-9055 today to schedule a consultation and start building your defense.