SD DUI Lawyer Explains Rising BAC Defense

San Diego DUI LawyerSan Diego DUI Lawyer
California Vehicle Code Section 23152(b) makes it a crime to drive a motor vehicle with a BAC at or above the legal limit of .08, at the time of driving.  There are many defenses to this charge, but the "Rising BAC" defense is probably the most common.  In addition to challenging the accuracy of the test, a thorough DUI defense will examine whether the BAC, as tested, accurately reflects the driver's BAC at the time of driving.  Most often, driver's arrested for DUI are still in the absorptive phase, meaning that their BAC level will continue to rise.  There are several reasons for this.  Alcohol can take several hours to be fully absorbed into the blood stream.  As such, drivers who recently consumed an alcohol beverage, then drive home immediately, have not yet begun to feel the effects of recent drinks, and may have been below the legal limit at the time of driving, even if they test above the legal limit an hour or two after driving.  Additionally, it is the odor of alcohol which often triggers an arresting officer's suspicion of DUI.  When an officer can smell alcohol on a driver's breath, it is likely the case that they have been drinking recently, and are in the absorptive phase.  Testing is often delayed up to two or three hours, making the tests unreliable.  The alcohol absorption pattern cannot be accurately determined, and with the burden of proving BAC at the time of driving on the government, Rising BAC is a strong defense.

That's right.  Many of the people who are arrested for DUI and give a blood or breath sample above the legal limit, are actually below the legal limit at the time of driving.  If a person drives a short time after drinking, their BAC is likely still on the rise, meaning that as more time passes, the BAC level will continue to go up before it begins to come back down.  By establishing a pattern of drinking with witness testimony or receipts, and calling an expert witness to interpret the timing of the tests, a skilled San Diego DUI Lawyer can help to assert a rising BAC defense in your case.  If you tested above the legal limit, there may be a wide range of defenses, including Rising BAC, Mouth Alcohol, Medical Conditions, Field Sobriety Tests, Driving Pattern, Did Police Follow Proper Procedure?, and Challenging a Bad Traffic Stop.

The rising BAC defense is most often asserted at trial, used as leverage in plea negotiations with the prosecuting attorneys, or used at a DMV hearing to protect a client's driving privilege.  Most effective with a qualified expert witness, it is important to educate the trier of fact that chemical tests become less accurate to BAC at the time of driving as time passes.  And while many would assume BAC to decrease as time passes, it is important that a jury, judge or hearing officer be fully informed about the process by which alcohol is absorbed into the body.  Alcohol absorption occurs in the lower intestine, and alcohol that is still in the stomach has not yet entered the blood stream, affecting a breath or blood test and a driver's ability to safely operate a motor vehicle.

EXAMPLE OF THE RISING BAC DEFENSE IN PRACTICE:
Jeff, a Mission Valley resident, works in Downtown San Diego.  After work, he and co-workers go to a weekly happy hour, where they have a few drinks and unwind.  After two cocktails, Jeff gets in his car to drive home.  On his way back, he is pulled over by the California Highway Patrol for speeding.  Jeff consumed his second drink approximately 15 minutes prior to being pulled over, and his breath smells like alcohol.  The officer asks Jeff to step out of the vehicle, answer a series of questions and perform a bunch of field sobriety tests.  After the tests, now 45 minutes since the traffic stop, the officer asks Jeff to blow into the preliminary alcohol screening (PAS) device.  Jeff agrees (though this test is voluntary) and blows a .09 BAC.  Jeff is arrested and transported to the station.  At the station, Jeff submits to another breath test, this time yielding a .10 result.

Jeff hires a San Diego DUI lawyer to represent him.  Jeff's lawyer requests a DMV hearing and gets the discovery (police reports, video footage, etc.)
.  It is immediately apparent to Jeff's attorney that there is a strong Rising BAC defense.  Not only does the rising pattern in the two tests indicate that Jeff's BAC was on the rise, but the smell of alcohol on Jeff's breath supports that notion as well.  Furthermore, Jeff's co-workers are witnesses to when he drank, and can confirm that his second drink was shortly before he drove.  Jeff's lawyer can assert the Rising BAC defense, among other defenses, at both the DMV hearing and in the criminal court case.


OTHER DUI DEFENSES INCLUDE:
MEDICAL CONDITIONS
| MOUTH ALCOHOL | PROBABLE CAUSE FOR STOP | TESTING ACCURACY
PROPER TESTING PROCEDURE | DRIVING PATTERN | FIELD SOBRIETY TESTS


TYPES OF DUI CASES WE HANDLE:
FIRST DUI | DUI WITH A PRIOR | DRUG DUI | DMV HEARING | DUI W/ INJURY | FELONY DUI

If you or a loved one has been arrested and charged with Driving Under the Influence (DUI), you need a passionate, aggressive and knowledgeable San Diego DUI Attorney on your side to fight for you and assert your rights.  Contact the Law Offices of Nicholas Loncar for a Free Consultation and to discuss how the Rising BAC defense, and other defenses might apply to your case.  It is also important to remember in DUI cases, you have only 10 days to request a DMV hearing to protect your driving privilege.

Nicholas M. Loncar, Esq.
San Diego Criminal Defense Attorney
San Diego Expungements Lawyer
www.iDefendSanDiego.com
619-930-9515
By Nicholas Loncar   
 


Comments


Your comment will be posted after it is approved.


Leave a Reply