The rising blood alcohol defense raises the question of what your blood alcohol content was at the time of driving, rather than at the time of the blood alcohol test. For a period of time after you ingest alcohol, your blood alcohol level rises as the alcohol passes through your digestive tract and into your blood. Then it levels off and begins to fall as the alcohol is broken down by your liver. When your blood alcohol is rising you are in what’s called the absorption phase of the alcohol curve. When your blood alcohol begins to fall, you are in the elimination phase. For more information see How alcohol is absorbed and eliminated.
If you were stopped for DUI and tested while you were in the absorption or rising phase, your BAC while driving would have been lower than at the time of the chemical test. Thus, depending on your tests results, drinking pattern, and other factors, it may be possible to convince a jury that your blood alcohol was under the legal limit when you were behind the wheel.
The rising blood alcohol defense can be used effectively only when competent testimony establishes that you were drinking shortly before your arrest. Additionally, a viable rising blood alcohol defense requires you to have had a good or very good performance on any field sobriety tests that may have been administered. Combined, these facts may allow your DUI attorney to effectively argue to the jury that your blood alcohol content at the time of driving was likely less than .08% even though the actual test was greater than .08%.
The rising blood alcohol defense may not be appropriate in jurisdictions where a statute allows for any tests taken within a certain time, usually two hours from the arrest, presumptively to establish a DUI defendant’s blood alcohol content at the time of driving. In addition, jurors sometimes find the rising alcohol defense difficult to accept. This is because they tend to intuitively believe just the opposite, which is that a driver’s BAC was higher at the time of driving.
Below are some questions that a DUI lawyer might pose to a client about the rising alcohol defense along with answers that a well-prepared DUI defendant might give.
DUI LAWYER: When was your first alcoholic drink?
DEFENDANT: At eight o’clock.
DUI LAWYER: How can you be sure?
DEFENDANT: We arrived at the restaurant at 7:30 and we were seated about ten minutes later. The waitress came by, asked for our drink order and then brought me my glass of wine.
DUI LAWYER: Who paid for dinner?
DEFENDANT: I did.
DUI LAWYER: Did you pay with cash or credit card?
DEFENDANT: [The answer is unimportant.]
DUI LAWYER: Do you recall how much the total was?
DUI LAWYER: If I showed you the receipt from that night would that refresh your recollection?
DUI LAWYER: Look at this receipt and see if it refreshes your recollection?
DEFENDANT: It does. The total was $125.
DUI LAWYER: Does the receipt show what the party had to drink that night?
DEFENDANT: Yes it does.
DUI LAWYER: Okay, John, how much did you have to drink?
DEFENDANT: As I told the officer, I had three glasses of wine from when I arrived to when I left.
DUI LAWYER: What time was the last glass?
DEFENDANT: I am not sure.
DUI LAWYER: Would looking at the receipt help you out?
DUI LAWYER: So what time was it?
DEFENDANT: Well as I said before, my last glass was just as we left, so it would have been nine o’clock.
DUI LAWYER: And what time did the officer say he stopped you?
DEFENDANT: Well I remember it being about 9:15 and he said it was 9:19 in his report.
DUI LAWYER: So, you had just finished the last drink within 20 minutes of leaving?
DUI LAWYER: Any reason why you had one more so close to the end?
DEFENDANT: It was a glass of dessert wine. You only have that at the end.
The prosecutor may try to intimate that you would have to have pounded your drink and that such behavior is unbelievable. Be prepared to indicate, if true, that the last drink was a dessert wine or other after dinner drink that everyone knows is consumed at the end of a meal, or perhaps a little leftover wine.
If your last drink was leftover wine, do not be afraid of showing that you are a bit miserly. Almost all of us have had the occasion of getting ready to leave, and seeing half a glass or so of the wine we had ordered during dinner. Given the prices we pay, most of us decide not to waste the wine and take the last bit as one final gulp.
Such “thriftiness” will not bother the jury. But be prepared to admit it. The admission may seem harmful, but your DUI lawyer can explain it as honesty and typical human nature during closing argument.