Beat a DUI: Rising BAC

In all states, having a blood alcohol content at or above .08% is considered driving under the influence (granted, certain states employ lesser criminal charges, such as wet and reckless or others, for lesser BAC while driving offenses). In essence, the conviction of such an offense hinges on the prosecution proving that at the time of operating a vehicle, immediately before a traffic stop, a driver had a blood alcohol in excess of the legal limit. The nature of the human body, which involves continual absorption and process of alcohol into and from the body, and the delay in BAC testing from when a driver was actually driving versus when he or she was tested, presents grounds for disputing the accuracy of a blood alcohol content reading.

Rising BAC in Terms of DUI Arrests

In reality, a driver may possess a legally allowed BAC content while driving, but after a certain amount of time required to administer a BAC test, his or her blood alcohol content may have actually risen, as the body absorbed alcohol into and from the bloodstream. As a defense, a driver may raise the question of whether his or her BAC reading, and in turn the grounds for conviction, were actually the result of a rising BAC during the arrest process. Typically, law enforcement attempts to administer some form of BAC testing as soon as possible to mitigate these types of defenses, but the reality of the situation is that a time lapse will almost always occur. Another known method law enforcement employs to discern whether rising blood alcohol may play a role in readings is through questioning of suspects, especially regarding the number of drinks consumed and the general timing of when the drinks were consumed.

Legal Issues Relating to Rising BAC

Depending on the state, certain statutes exist whereby if testing is administered by law enforcement within a set period of time (typically no more than an hour or two) the results of the delayed test are indicative of the BAC of a driver while driving. In essence, this places the burden of proof on a driver to prove that his or her BAC was within the legal limit while driving, but later, as the result of absorption and delayed testing, the BAC rose past the legal limit.

Getting Legal Help with Rising BAC Defenses

In practice, using a rising BAC defense will not only require the insight of a DUI lawyer, but also, will require the testimony of an expert witness, usually a toxicology expert or some other individual with a credible forensic science background, to dispute the actual BAC of driver while driving. These defenses may also be employed by drivers to reduce an elevated or reckless DUI charge related to an elevated DUI, as allowed in certain states, to a normal DUI offense.