If you were recently arrested for driving under the influence in Orange
County, you may be poring over the Internet, and Googling DU defenses.
If your search turned up the “rising BAC defense,” you may
be wondering if it could apply to your case. A good question indeed!
Let’s say that you have a couple big glasses at wine at home at 9:00
pm while entertaining friends for dinner. Right after you down the two
glasses of wine, you realize that you need to make a beer and wine run
because you’ve run out of alcohol to serve your friends.
When you leave the house, your
blood alcohol concentration (BAC) is rising.
When you reach the freeway 10 minutes later, your BAC is around .04%. You
get stuck in traffic on the freeway, and by the time you finally reach
the store, your BAC is .09%, slightly above the legal limit.
You hit the store and pick up a case of beer for the guys and another bottle
of wine for the ladies at the dinner party. You get back in the car and
two blocks from the store you’re pulled over.
Your BAC Keeps Rising
Your BAC does not stop rising because you are stopped. By the time the
officer takes you back to the station, your blood or breath test (chemical
test) may say that your BAC has risen to 0.16%, twice the legal limit.
Can a rising BAC be defended?
In this situation, the prosecutor is likely to argue that the result of
your chemical test is presumed to be the BAC level that you had at the
time you were driving, which makes no sense when 30 or 60 minutes elapsed
between the traffic stop and when the chemical test was taken at the station.
DUI defense attorney can try to establish that the client’s BAC was BELOW the
legal limit when he or she was driving. In effect, no weight is given
to the test’s results.
Usually, the “rising BAC defense” works best when the test
results show that the client had a BAC that was slightly above .08% -
the legal limit.
Such a defense can be strengthened when there is supporting evidence, such
as receipts or witness statements showing that the defendant hadn’t
drank for some time before the chemical test.
To find out if the rising BAC defense may apply to your case,
contact the Law Offices of Virginia L. Landry, Inc. and schedule your free case