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.
A 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 evaluation!