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An arrest for driving under the influence in California is an expensive and painful process for many California drivers.  There’s the embarrassment of the arrest, the thousands of dollars in fines, the DUI classes you must attend (and pay for), and possible custody time, not to mention the cost of an attorney.  Many people choose to forego an attorney and plead guilty in hopes of moving on with their lives and avoiding legal fees. However, this is likely not the best approach in jurisdictions that are especially harsh on driving under the influence charges, including Orange and Riverside Counties.

What if you weren’t guilty? 

Many California drivers incorrectly assume that they are guilty when a breath machine indicated they had a blood alcohol content (BAC) above a .08.

Just because a motorist’s BAC is above a .08 does not necessarily mean that person was driving under the influence, however. In California, to be convicted of 23152(b) (the legal code for driving with a BAC of .08 or above) the driver’s BAC must have been a .08 or above at the time of driving.

On average, it takes the human body about an hour for anything we consume to be absorbed into our system, including alcohol.  Until the point in which alcohol is fully absorbed by your blood, your BAC will continue to rise.

What does this mean for a DUI arrest? 

Most California DUI arrests result in a breath test that is taken well after the driver consumed their last drink. In these cases, the result of a breath test you took an hour or two after your last drink is not going to be an accurate assessment of your BAC when you were actually driving. It may be possible to convince a jury, or even the District Attorney’s office, that your BAC was below a .08 while you were operating the vehicle. This is known as the Rising Defense and it is one of the DUI defenses that prosecutors most fear.

If you’ve been arrested for driving under the influence in California, don’t just plead guilty.  There may be very effective defenses to your case that a qualified DUI attorney can use to successfully represent you.  If you are charged with DUI in the Coachella Valley, please feel free to contact my office at 760/861-5923 or for a free consultation and advice on how to proceed with your case.

Christopher P. Hickey is a Southern California criminal defense attorney practicing in Riverside, San Bernardino and Orange Counties. 

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