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Rising BAC Defense for Drunk Driving Charge


In California, a driver's BAC (blood alcohol content) is considered over the legal limit if it is measured at 0.08% or higher. It is not uncommon for close to an hour to pass between the time the person has been stopped and the time that the blood, breath, or urine test has been administered. Therefore, arguments for rising BAC defense can claim that the individual's BAC was lower while driving than the time that he or she actually took the breath or blood test.

The reasoning behind this defense can be seen in this example. Say a driver has taken a shot of liquor at a bar and then leaves. A few minutes later, he is stopped by police. The alcohol that he or she has just consumed is still being absorbed, and thus has yet to affect his BAC level. The driver will be asked a series of questions and then field sobriety tests may be given, which could take up to 40 minutes to an hour, causing the driver's BAC to rise to 0.08% or more by the time the officer requests a blood or breath test. The possibility for this inaccuracy is tied to the fact that the driver's BAC was below the legal limit at the time he was driving, and not when the test was taken.

How the Body Processes Alcohol

The body processes alcohol at different rates, anywhere between 30 minutes to 3 hours. It can be helpful to understand why there is a delay between the time the drink is consumed and when the alcohol has been absorbed.

Rates of absorption can depend on the following factors:

  • Age
  • Gender
  • Body mass and fat composition
  • Food consumed prior to, during, or after that time
  • Medications or drugs taken
  • If the person is diabetic
  • Rate of consumption

Ultimately, these findings show that there can be enough room for error in determining an accurate reading on a driver's BAC.

Defending a DUI Charge

Rising BAC defense is one of the ways the attorneys at The Law Offices of Allan Adam Arant, Esq. can fight for a drunk driving charge to be dismissed or reduced. Our firm has been serving San Jose since 2007, and we are passionate about protecting the rights of those who have been charged with drunk driving. We have an aggressive approach to defense and can investigate the details of your case to obtain the best possible outcome.

Give us a call today to schedule a free evaluation.