California Vehicle Code Section 23152(b) makes it unlawful to drive a motor vehicle with a .08 percent or greater blood alcohol content (BAC). The key language to this law is that the driver's BAC was .08 or greater at the time of driving, not at the time the breath or blood test was given. When a person consumes alcohol, the body digests it through the stomach and small intestine, and then absorbs the alcohol into the bloodstream. Once the alcohol is in the blood you begin to feel the effects. It takes awhile for this process to occur and it can vary depending on whether you have eaten anything and how strong the drinks are. If a person consumes alcohol on an empty stomach it will enter the bloodstream much quicker than if they consume alcohol following a meal.
Rising BAC is an important concept to understand in DUI cases. Let's say a person has two beers within a relatively short period of time during and following a meal. Immediately upon finishing the last drink, the person begins to drive and is stopped 5-10 minutes later by the police. The police smell alcohol on the person's breath and request them to do field sobriety tests. Perhaps there is a delay in performing the tests, officers are awaiting on a more experienced DUI officer to come to the scene or they need to transport the driver to a different location for the tests. Based upon the person's performance on the FST's and other evidence of intoxication, officers place them under arrest. The person is then transported to either the police station or hospital for a breath or blood test. This process may take a little time. Before you know it, an hour or two have passed since the person was actually driving. The person's BAC test result is a .09, over the legal limit. However, under the facts in this example it is likely that the person was not over .08 when they were actually driving. Their body would still have been absorbing the alcohol at the time they were driving. Plus the fact that they were eating at the time means they were slowly absorbing the alcohol. A good DUI lawyer, with the assistance of a forensic toxicology expert, will prove that the person could not have been greater than .08 at the time they were driving. Rather, they were only over the legal limit after they were done driving.
Rising BAC defense is not available in all DUI cases. A person accused of DUI or a witness would need to testify as to the time that they were drinking and how much alcohol they consumed. The rising BAC defense is usually successful in lower percentage BAC cases, typically .11 or under. It is also helpful if there are no aggravating factors to support the DUI charges. For example, an accident or very poor driving would support the prosecution's claim that the person's ability to drive was still impaired. Similarly, a person that has trouble standing up and walking during the FST's will have difficulty successfully asserting this defense. A rising BAC defense cannot help a person defeat Vehicle Code Section 23152(a), which does not require a person's BAC to be .08 or greater. This section only requires evidence that the person's ability to drive was impaired by the use of alcohol and that they could not drive a vehicle with the caution of a sober person under similar circumstances.
If you have been arrested for DUI but believe that you were under a .08 BAC at the time you were driving, CONTACT Berglund Law Office, P.C. today and speak with an experienced DUI Lawyer. We will provide you with a free and honest evaluation about your case and whether this can be a successful defense in your case.