Raising the Blood Alcohol Defense in DUI Cases


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Raising blood alcohol content defense is a common and sometimes successful defense of DUI charges. This defense explains that the BAC may have been lower when the driver was driving, even if he or she registered a .08 percent or higher after being pulled over. Various factors play a role in how the BAC registers higher later and how it may be lower before the rise.

However, this does mean some innocent individuals are pulled over and arrested while others who may be committing DUI violations are not stopped.

When the body is still absorbing alcohol and a test to check the BAC level is performed, results may often be inaccurate. Obtaining a criminal defense lawyer early to assist in building a rising blood alcohol defense is essential. Evidence must be challenged to show the BAC tests did not accurately record the alcohol content at the time they were administered. Add to this the unreliable results from portable machines, and an arrest was not substantiated.

Absorption of Alcohol from Consumption

Because alcohol takes time for absorption into the blood stream, this defense has been used as a valid defense in some instances. Absorption may depend upon what food has been eaten and what other drinks have been drunk. These combine in the digestive tract and may take up to two hours for alcohol to enter the bloodstream and reach the highest point of absorption level. This often affects the person who is driving to allow a safe drive until the end of the journey. The alcohol tends to only fully enter the blood stream after they have completed the drive due to the time it takes.

Alcohol Concentration and Impact of Food and Drink

The usual metabolizing of alcohol runs at a rate of .01 per hour. Combine food or other drinks to the alcoholic drinks, and the BAC levels may be different than when only alcohol is consumed. An empty stomach has nothing else to absorb the alcohol and concentrates the BAC levels until they may be metabolized. Contrasted to a full stomach, where the BAC level is less due to the food absorbing alcohol enough to reduce the numbers.

When a breathalyzer is used in the field, it usually is not picking up accurate levels due to the time it takes alcohol to actually run into and through the blood stream. The levels analyzed are not correct based on the way a breathalyzer should work which examines breath based on how much alcohol should be in the personís system. For those drivers showing levels beyond .08 after coming out of a bar, these readings are often vastly incorrect. The breath would be laced with alcohol, but not enough could have made it into the personís system to affect driving in most instances.

Women and BAC

Women tend to run much higher in BAC when drinking alcohol. Because they have less water in their systems than compared to men, levels of blood alcohol often rise to higher numbers. The levels rise quicker because the alcohol has less ability to dilute through the liquid of their bodies compared to menís bodies.

Rising Blood Alcohol

Times of peak alcohol absorption are often affected by a full or empty stomach and how dense the food or drink consumed were. This means the highest BAC level that may be discovered in a personís body is delayed through the consumption of other substances. The alcohol doesnít hit the bloodstream until later due to this action of eating and drinking. This causes the BAC levels to rise as more alcohol enters and passes through the blood stream. The BAC test through a breathalyzer may not reveal the correct numbers due to this phenomenon. Meaning a driver may be driving legally at the time of arrest and well into or even after the journey would have ended in many instances.

Various means may be used to prove the blood alcohol content was on the rise when taking a test through a breathalyzer machine. These often come with evidence the accused supplies through receipts of what was purchased and when. This proves what food and any additional substances were consumed. Witnesses from the bar or restaurant or that came with the driver may prove he or she was sober when leaving the establishment.

Using a Lawyer to Prove Rising Blood Alcohol

Many lawyers are experienced and knowledgeable enough to assist with the rising blood alcohol defense. They may hire a toxicologist expert to reveal a BAC level lower than the limit of .08 percent when the accused was driving. Other observed evidence such as sober driving prove this defense to be true.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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