Science, particularly biology, can be on your side in a DUI trial, if you and your Pierce County DUI attorney can make a case for a “rising blood alcohol” defense. In an “on the rise” defense, your attorney will argue that the reading you got on your breathalyzer test was falsely high because you were in a rising blood alcohol state. Put another way, this defense allows your attorney to argue that your blood alcohol level was lower at the time you got behind the wheel than it was when the blood alcohol test was administered some time later.
How it works
When you drink alcohol, it takes about fifty minutes—although it can take up to three hours—for it to absorb into your bloodstream, a process that can be affected by the amount of food in your stomach, whether or not you were eating when you drank, your rate of consumption (known as drinking pattern), or the type of alcohol you drank. Before the alcohol is fully absorbed, what’s known as peak absorption, your blood alcohol content (BAC) continues to rise. Once it reaches your blood, your level begins to decrease as your liver goes to work breaking down the alcohol. Therefore, if you were tested before peak absorption, when you were in the rising phase, your results could be falsely high.
If your results are borderline enough, your attorney can argue that your BAC was within legal limits when you got behind the wheel and that you would have tested lower at that time – low enough to avoid the DUI charge.
If you performed well on any field sobriety tests administered at the time of your arrest, this will help support your “on the rise” defense. In addition, this defense is best used in conjunction with credible testimony that you were drinking shortly before your arrest—the “one for the road” factor—so that the time frames match up. Expert testimony that explains this science can also be helpful, as prosecutors are likely to operate from the assumption that if you tested above the legal limit, then you were driving above the limit. Unfortunately, because this seems logical, jurors may be inclined to agree. It’s up to your attorney to show that science trumps logic.
If you have questions about the “on the rise” defense and would like to consult with a Pierce County DUI attorney, please contact me. Use the Free Case Evaluation form on this page to tell me about your situation, or call or email me directly.