DUI Crackdowns and the Rising Blood Alcohol Defense

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This past weekend, a countywide crackdown on drunken and drug – impaired drivers resulted in 550 arrests. The California Highway Patrol’s “Maximum Enforcement Period” takes place Labor Day weekend. During this period 80 percent of CHP officers will be on the street looking to nab drunk drivers.

In the coming days, extra DUI checkpoints and patrols are planned in Los Angeles, Bell Gardens, South Pasadena, Whittier, Norwalk, Santa Monica, Beverly Hills, Long Beach, El Segundo, Gardena, Hawthorne, Hermosa Beach, Inglewood, Manhattan Beach and Torrance.

So, after all that warning if you still find yourself facing a DUI in any of those city courts, one defense to think about is the “Rising Blood Alcohol Level” defense. When alcohol enters your body, it absorbs into your bloodstream. As it does this, your blood alcohol concentration (B.A.C.) continues to rise until you have reached what is known as your “peak” absorption rate.

If you got arrested for violating Vehicle Code section 23152(b) [driving with a B.A.C. of .08% or more], but provided a DUI blood or DUI breath sample before you reached your peak absorption rate, the results of your DUI chemical test were probably falsely high. It is this type of scenario that lends itself to the “Rising Blood Alcohol Level” defense.

On average, alcohol takes about 50 minutes to absorb into your system after you stop drinking, although it may take as long as three hours. The absorption process is affected by a variety of factors such as:

  • whether you eat while you consume the alcohol,
  • whether you drink on an empty stomach,
  • what type of alcohol you drink,
  • how quickly/slowly you drink (your drinking pattern), and
  • your blood-to-breath partition ratio (the relationship between the alcohol measured in your breath and the alcohol measured in your blood.)

If your absorption process isn’t complete by the time you submit to a DUI blood or breath test, your B.A.C. is still rising. If your chemical test was taken while you were on the rise, then you defense attorney would argue that your B.A.C. at the time of driving was lower than the chemical test reading.

In order to be convicted of driving with a B.A.C. of at least 0.08%, your B.A.C. must be at that level at the time of driving

Although this fact seems obvious, it is often overlooked or brushed aside by officers, prosecutors, and sometimes even judges. This is because it is convenient for the prosecution simply to assume that if you tested above the legal limit, you must have driven above the legal limit.

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