DUI DEFENSES: Rising BAC

LOS ANGELES DUI LAWYER
It is unlawful to drive in California with a Blood Alcohol Concentration (BAC) of .08 or higher.  Drinking before you drive, is not, in and of itself against the law.  Your BAC, while driving, must be below .08.  Alcohol takes some time to be absorbed into your blood and to affect your ability to safely drive a car.  It takes most people about 45 minutes from the time of their last drink to reach their highest BAC point.  Moreover, blood alcohol absorption can take several hours.  Accordingly, a BAC reading of .11, if conducted an hour AFTER a driver has stopped driving, there may not be strong evidence that the driver was at or above .08 while operating a motor vehicle.

DUI arrests are usually based on chemical tests conducted some time after the driver is no longer driving.  In fact, Title 17 of the CA Code of Regulations, the laws dealing with how officers must administer chemical tests during a DUI investigation, require a 15 minute observation period.  Additionally, with breath testing, multiple tests are conducted, usually 15-20 minutes apart.  These tests might very well show a higher BAC on the second test, one indicator of "rising" BAC. 

By the time an officer is finished asking a driver questions and having the driver perform field sobriety tests, the driver's BAC might be measurably higher than it was while driving.  Additionally, the physical activity associated with those field sobriety tests can accelerate a BAC rise.

If you drink two beers right before getting in the car to drive to a nearby party, the effects are unlikely to take hold while you are driving.  They might, however, lead to a high BAC by the time an officer gets around to giving you a chemical test.  Additionally, some DUI investigations are conducted after a driver has already arrived home.  Officers might get a report of a hit-and-run or erratic driving, only to locate the car parked at the suspect's residence.  BAC at that point in time is not necessarily probative of BAC while driving.  Not only could rising BAC be a factor, but the suspect may have consumed alcohol after driving.

Remember, the government has the burden of proving your intoxication while driving beyond a reasonable doubt.  A skilled DUI attorney and qualified expert witness can call into question the government's results and assert a rising BAC defense at trial.  If you've been arrested for DUI, contact our office immediately for a free consultation at 323-803-4352.

EXAMPLE:
Sarah is driving home from dinner at her favorite Santa Monica restaurant.  At dinner, Sarah drinks two glasses of wine and a piece of tiramisu, brushed with rum and coffee liqueur.  Right after dinner, she is driving home when she is pulled over for speeding on the 10 freeway by the California Highway Patrol.  The CHP officer smells alcohol on Sarah's breath, and asks if she has been drinking.  It is not a crime to drink alcohol and then drive, so long as the amount of alcohol does not impair the driver's ability to safely operate a motor vehicle or is above the legal limit of a .08 BAC.  Sarah admits to having two glasses of wine, but does not realize that there was alcohol in her dessert.

Next, the officer asks Sarah to perform a series of field sobriety tests, then asks her to sit down on the curb.  Sarah was wearing high heels and had difficulty performing the test, demonstrating poor balance.  About 15 minutes later, now 30 minutes from the time Sarah was last driving, the officer asks Sarah to blow into a Preliminary Alcohol Screening device, a hand-held breathalyzer used as a sobriety tests by officers on the scene of a DUI investigation.  The PAS device yields two results, one .075 and one .081, two minutes later.  Sarah is arrested for DUI and gives another breath sample at the station.  This time, the more accurate machine yields a result of .10.  The Santa Monica City Attorney's Office files DUI charges at Airport Courthouse.

Sarah's Los Angeles DUI Lawyer carefully interviews Sarah about her drinking pattern, what she ate, her health history, dental work, alcohol tolerance, general balance, and more.  It is clear to the attorney what happened.  Sarah drank (and ate) alcohol a very short time before driving.  It takes two hours for alcohol to be fully absorbed into the bloodstream.  Someone who drank alcohol within minutes of driving will not have been impaired by that alcohol yet.  The pattern in the different BAC results indicates that Sarah's BAC was actually lower than .08 at the time of driving, despite a .10 test result nearly two hours later.  Sarah's defense attorney calls an expert witness to explain the rising BAC defense in a way that the jury can understand.  Sarah is acquitted of all charges at jury trial. 

If you or someone you know has been arrested for DUI (or any other crime), contact the Law Offices of Nicholas Loncar for a free consultations with a Los Angeles Criminal Defense Attorney.

IMPORTANT LINKS:
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department
Los Angeles Felony Bail Schedule
Los Angeles Misdemeanor Bail Schedule

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
NL@iDefendLosAngeles.com
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

By Nicholas Loncar

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