Author Archives: Lawrence Taylor

Rising Blood Alcohol as a Defense to DUI Charges in California

When you are charged with a DUI, one of the first things that courts will look at is your blood alcohol level. If it is found to be above the legal limit, you may face harsh penalties, including jail time and fines. However, if your blood alcohol level rises after you are pulled over but before you take a breathalyzer test, you may be able to use this as a defense in court. Learn more about California’s rising blood alcohol defense and how it could help you avoid a conviction.

What is a ‘Rising Blood Alcohol’ Defense in a DUI Case? 

One of the more common defenses raised to charges of driving under the influence is “rising blood alcohol.”

In many DUI cases, the defendant will claim that their blood alcohol level was rising at the time of their arrest, which is known as the rising blood alcohol defense. The theory behind this defense is that the defendant’s blood alcohol level was below the legal limit when they were driving but rose above the limit after they were pulled over. As a result, they would not have been impaired at the time of their arrest.

Unfortunately, this defense is often unsuccessful. Courts have held that it is the defendant’s responsibility to ensure that their blood alcohol level remains below the legal limit. However, in some cases, the rising blood alcohol defense may be successful if the defendant can prove that they did not have enough time to sober up before being arrested.

If you have been charged with DUI, it is important to speak to an experienced DUI attorney who can review your case and help you determine the best defenses available to you.

What Is “Rising Blood Alcohol”?

After a person consumes alcohol, it takes a little time for their blood alcohol levels to rise to a peak and then go back down. Even though a person stops drinking, their blood alcohol concentration (“BAC”) will continue rising for a period after the initial alcohol consumption. After drinking an alcoholic beverage, it usually takes between half an hour to two hours for a person’s BAC to peak.

If someone was pulled over under suspicion of drunk driving before their BAC had reached its peak, their blood alcohol level could be higher by the time their blood or breath gets tested. In other words, their BAC might be below the legal limit of 0.08 when they began driving and were pulled over, but over the legal limit by the time of the testing.

How Is Alcohol Absorbed in the Human Body?

According to HealthLink BC, the process of alcohol absorption begins in the mouth. The lining of the mouth absorbs some of the alcohol directly and as the beverage passes through the esophagus, the lining of the esophagus absorbs some alcohol as well. Traveling through the body, the walls of the stomach then absorb a portion of the alcohol, with the intestines—primarily the small intestine—absorbing the remainder of the alcohol.

If you have solid food in your stomach or intestines before or during alcohol consumption, the presence of the solid food will cause less of the alcohol to come into direct contact with the walls of the intestines. In that situation, the absorption process will be slower than if you drink on an empty stomach. So, having a full or empty stomach could make a significant difference in how slowly or quickly alcohol is absorbed into your body. If there is no food in your stomach, your body can absorb all the alcohol from one drink within roughly half an hour. If you have solid food in your stomach and it is relatively full, the absorption process can be slowed down to as long as 90 minutes.

Alcohol molecules are very small, which explains why they are absorbed and spread so quickly to every organ in the body. These molecules are easily dissolved in both water and fat, which are distributed throughout the body. It is also not necessary for digestive enzymes to break down the tiny alcohol molecules for them to get into the bloodstream.

If you drink something that contains more than 20% alcohol, you can actually delay your body’s absorption of the alcohol. A strong alcoholic beverage such as a mixed drink irritates the stomach lining, which slows down the passing of your stomach contents, including alcohol, into the small intestine.

Also of note is the fact that the speed at which your body metabolizes alcohol does not change based on how much alcohol you drank. You can usually metabolize the equivalent of one serving of alcohol per hour. As a result, a cocktail containing three shots of whiskey will take approximately three times as long for your liver to metabolize as a cocktail containing one shot of whiskey. 

How Do BAC Levels Change Over Time?

Just like a person’s blood sugar or other blood chemical levels, a person’s BAC is not a constant number. If you eat a handful of candy, your blood sugar will go up, peak, and then go back down. It is the same with alcohol. After you have an alcoholic drink, your blood alcohol will climb upward, reach a peak, and then descend. 

Generally, it takes about half an hour to two hours for a person’s blood alcohol level to peak after drinking. Of course, if a person continues drinking, the bell-shaped curve of their BAC levels from each drink can overlap. Thus, their results from a breath or blood test will vary accordingly. This phenomenon can be grounds for a rising blood alcohol defense. 

Factors That Affect the Rate at Which BAC Rises

The rate at which a person’s BAC rises can vary, depending on several factors, such as whether the person had an empty or full stomach or how strong their alcoholic beverage was. However, these are not the only factors that can affect the speed at which alcohol enters the bloodstream.

Other factors include:

  • The individual’s alcohol metabolism rate, which in turn, can vary by fitness, mood, digestion, hormonal cycle, and dietary habits;
  • The speed at which the individual consumed the alcoholic drinks. Having three drinks over the course of an evening will affect a person differently than slamming three drinks in 10 minutes;
  • Carbonation levels of their alcoholic drinks, as the body tends to absorb carbonated beverages more quickly;
  • The sex of the individual consuming the alcohol, as men tend to have more of a protective enzyme that can break down alcohol before it enters the bloodstream, thereby leading to a lower BAC. Additionally, women’s bodies tend to concentrate alcohol within the water in their system because their bodies have less water; and
  • The individual’s build and amount of body fat. Those with a high amount of body fat are likely to have a higher concentration of alcohol level in the bloodstream because body fat does not absorb alcohol. Additionally, when two people with different builds drink the same amount of alcohol, the larger-framed person will tend to have a lower alcohol content than the person with the smaller frame.

How Can “Rising Blood Alcohol” Lead to a False Result on a DUI Chemical Test?

As mentioned, rising blood alcohol refers to the unfortunate circumstance in which a person’s blood alcohol content gets tested when their alcohol levels are higher than they were when they were driving. This can be a DUI defense that an experienced lawyer may use to raise a reasonable doubt and prevent a conviction for intoxicated driving.

Can a Driver Use “Rising Blood Alcohol” to Fight DUI Charges?

Yes, drivers can use the rising blood alcohol defense to fight DUI charges. However, doing so successfully requires sophisticated medical knowledge and legal experience. While you will not want to try to raise this defense if you are handling your own case, raising this defense with an experienced drunk driving defense lawyer may make all the difference.

Is an Expert Witness Required?

Generally, yes; courts may require the testimony of an expert witness when the subject matter in question is not a matter of common knowledge, or if it is a complex subject which may be difficult to understand. In a case involving a rising blood alcohol defense, the expert witness would explain the medical science behind the concept of blood alcohol concentration levels changing over time and how a rising blood alcohol can lead to a false result on a blood test or breath test.

How Long Does Your BAC Continue to Rise?

A driver’s BAC level from one alcoholic drink can continue to rise for 30 to 120 minutes after they stop drinking. If a person had more than one drink per hour, it can take even longer for their BAC to peak. Please note that “one drink” does not refer to the container for the beverage.

“One drink” can mean one serving of wine, one beer, or one shot of hard liquor. If a cocktail contains multiple shots, it will count as multiple drinks. If a person drinks a “yard of beer,” it will count as multiple drinks, not one beer. Additionally, one serving of wine usually does not mean filling the glass to the brim.

How Soon Does Alcohol Increase Your BAC?

A person’s blood alcohol concentration can start to increase immediately when they start drinking alcoholic beverages. At first, their BAC goes up a little, and eventually reaches its peak, then goes back down. 

The speed at which it increases your BAC will depend on how strong the drink is, how quickly the drink is consumed, as well as many other factors. For example, a person who “nurses” one vodka tonic all evening will likely see their BAC rise more slowly than someone who guzzles two or three beers an hour.

How Does the Rising Blood Alcohol Defense Work?

As a reminder, the rising blood alcohol defense argues that a person’s BAC was actually lower when they were driving than it was at the time they were tested under suspicion of DUI.

How Do Prosecutors Determine BAC at the Time of Driving?

The prosecution often engages in “educated guesses” about how high or low the defendant‘s BAC was at the time of driving. The district attorney often extrapolates in reverse, starting with the breathalyzer test reading of the alcohol in the bloodstream at the time of the chemical testing by the police officer, then working backward to the time when the defendant was actually driving.

Can I Fight My DUI Charge with a Rising Blood Alcohol Defense?

If your situation meets the criteria for a rising blood alcohol defense, you might be able to fight your DUI charge using this defense, possibly supplemented with additional arguments as well. With this approach, you will want to work with a California DUI attorney and most likely hire an expert witness who can explain to the court why your BAC level at the time of testing was likely higher than when you were driving.

What Is the Best Defense for a DUI?

The best defense for a DUI will depend on the unique circumstances of your situation. The best defense in one DUI case might be very different from the best defense in a different DUI case. Legal arguments are not a “one size fits all” process, and your criminal defense attorney can discuss best possible strategies and defenses with you.

How a Rising Blood Alcohol Defense Can Get Your DUI Dismissed

If you can convince the judge or jury that your blood alcohol level was lower when you were driving than when it got tested, you might be able to get your DUI charges dismissed, particularly if your test results were only slightly above the legal limit.

Talk To A DUI Defense Attorney

You will want to talk to a California DUI attorney right away, to give yourself sufficient time to investigate and execute legal maneuvers to seek the most favorable outcome possible in your situation. If you’d like to learn more about applying this defense to your case, you can speak a DUI Defense attorney today by reaching out to us at this link.



Booze Is Good for You!

It’s true!  Recent scientific research, some of it funded by our government, is on the path to finding that drinking alcohol is actually quite healthy!

Hmmm.  Maybe we should take a second look at this latest research into the health benefits of alcohol….

Alcohol Companies Are Funding Research to Convince You Drinking Is Healthy

April 14.  Huffington Post –  Officials at the government agency tasked with studying the health effects of alcohol aggressively courted alcohol executives to fund a $100 million clinical trial on “moderate drinking,” according to recently published investigations by The New York Times, Wired and Stat

The executives complied, according to the Times, with the understanding that this research would probably conclude alcohol is safe and lowers the risk of disease.

Together, these reports paint a disturbing picture about the way alcohol companies are trying to influence scientific understanding, and thus public perception, of alcohol as a health tonic…

Alcohol executives were allowed to help pick the scientists and preview the trial’s design, reports the Times, while Wired reported on how dependent the National Institutes of Health’s National Institute on Alcohol Abuse and Alcoholism (NIAAA) is on industry funding to complete the expensive, long-term study. Finally, Stat has a story about how scientists who published unflattering research about the alcohol industry were verbally abused by NIAAA officials and cut off from funding.

I seem to recall that “scientific research” (funded by the tobacco industry with government support) has already concluded that smoking cigarettes was not addictive.  It’s certainly heart-warming to know that science, government and industry is so reliable and concerned with our well-being….

(Thanks to Joe.)

Do Cops Have DUI Quotas?

The coercive effect of requiring police officers to make a minimum number of DUI arrests during a given period is obvious.  Drivers who the investigating officer does not feel there is probable cause to arrest for DUI will be arrested anyway.  Worst-case scenario:  cops will arrest drivers who they realize are not driving under the influence.  Of course, law enforcement — and local governmental agencies who pocket the extensive fines and fees — routinely deny having such policies.  And, as I’ve posted repeatedly in the past, it is a well-documented fact that drunk driving quotas are common across the country.  See, for example, “Inside Edition” Documents DUI Quotas Across U.S..   

Consider the following commentary appearing yesterday:

NHTSA Says Federal Law Requires Ticket Quotas

Jan. 30.  The Newspaper - Federal regulators are refusing to budge when it comes to requiring local police forces to use ticket quotas. The National Highway Traffic Safety Administration (NHTSA) on Thursday finalized the procedures local police departments use to receive their share of $450 million in traffic safety grants paid for by the federal tax on gasoline. In response to complaints from the National Motorists Association (NMA), the agency claimed it was powerless to change the way it allocated the funds…

“To qualify for funding, NHTSA requires an annual traffic safety plan from each state that must include statistics on seat-belt citations, impaired driving arrests, and speeding citations issued during grant-funded enforcement activities the previous year,” NMA President Gary Biller told TheNewspaper on Monday. “What outcome is expected other than the perpetuation of federally sanctioned ticket quotas?”…

“The federal statute further requires that highway safety plans be based on performance measures developed by NHTSA and GHSA,” the agency explained. “That report includes activity measures related to seat belt citations, impaired driving arrests and speeding citations… NHTSA may not waive these statutory requirements.”

So in addition to pocketing fees and fines for false DUI arrests, law enforcement has the added incentive of receiving federal funds.  But, of course, such quotas don’t exist, right? 

(Thanks to Joe.)

Can You Be Punished for Suspicion of Drunk Driving?

It has always been a cornerstone of the United States Constitution that a citizen is presumed to be innocent until proven guilty beyond a reasonable doubt.  No citizen can be punished based merely upon a police officer’s suspicion that he or she has committed a criminal offense.

Except, perhaps, in drunk driving cases.  See, for example, my posts DUI and the Presumption of Guilt and The DUI Exception to the Constitution.

In a recent example of this widely-prevailing view, consider a recent decision by the Oklahoma Supreme Court in the case of Hunsucker vs Fallin (December 20, 2017), as reported by

Oklahoma Supreme Court Slams DUI Law

Oklahoma City, OK.  Dec. 27, 2017 — Oklahoma’s attempt to crack down on drunk driving went too far. In a ruling last week, the state Supreme Court declared the Impaired Driving Elimination Act violated the due process rights of motorists by, among other provisions, requiring police officers to tear up a driver’s license upon the mere suspicion that he might be impaired.A group of attorneys filed suit, arguing that it was unconstitutional for the government to seize and destroy someone’s property without even allowing a hearing to contest the license seizure — and the high court agreed.

“More than forty years ago the US Supreme Court explained that revocation of a driver’s license must conform to the Due Process Clause,” Justice James E. Edmondson wrote for the court. “The Due Process protection of the licenses was viewed not as a mere state-created interest, right, or privilege, but when drivers’ licenses are issued their continued possession may become essential in the pursuit of a livelihood and suspension of issued licenses thus involves state action that adjudicates important interests of the licensees.”…

The law in question also included a half-dozen other provisions criminalizing the refusal to take a breath test, regulating deferred prosecution programs and providing conditions for the use of ignition interlock devices. The court found the hodge-podge of provisions in the 82-page bill violated the state constitutional requirement that bills stick with a single topic.

Question:  Why was it necessary for the state’s supreme court to tell the legislature and courts that seizing and destroying a citizen’s driver’s license based entirley upon a cop’s suspicions was a violation of the Constitution?

Do Crime Labs Hide Breathalyzer Test Evidence?

I’ve written in the past about the inaccuracy of breath test results generally.  See, for example, Breathalyzers and Breath Test Accuracy and How Breathalyzers Work – and Why They Don’t.  And I’ve commented upon the many instances of supposedly “impartial” crime labs faulty testing procedures and lab “experts” testifying to facilitate convictions rather than justice.  See Crime Lab Breath Tests “Unreliable”, More False Blood-Alcohol Results and Crime Labs Paid for Convictions – But Not for Acquittals?

This recurring and very disturbing picture of government crime labs willing to hide or even falsify evidence to assist government prosecutors appears to be endemic.  Consider, for example, this recent news article from The Boston Globe:

Report Finds State Lab Withheld Breathalyzer Test Results

Boston, Ma.  Oct. 17 – The head of a state crime lab office was fired Monday after investigators found that staff withheld exculpatory evidence from defense lawyers in thousands of drunken-driving cases since 2011, a disclosure that could threaten many convictions.

In a report released Monday, state public safety officials concluded that the Office of Alcohol Testing routinely withheld documents from defense lawyers in a lawsuit challenging the reliability of breathalyzer test results due to an “unwritten policy not to turn these documents over to any requester.”

The documents included evidence that breath testing devices had failed to properly calibrate during the office’s certification process, the report found.

“We conclude that OAT leadership made serious errors of judgment in its responses to court-ordered discovery, errors which were enabled by a longstanding and insular institutional culture that was reflexively guarded . . . and which was inattentive to the legal obligations borne by those whose work facilitates criminal prosecutions,” the report found.

This was followed a few days later with an insightful OpEd piece appearing in The Washington Post:

Another Week, Another Crime Lab Scandal

Wash., DC.  Oct 20 — ….At some point, we need to start asking pointed questions. Among them: Why would crime-lab analysts feel pressure to fake incriminating test results and to hide exculpatory results? Are they feeling pressure from police or prosecutors? We already know that, incredibly, some crime labs only get funding when their analysts produce results that help win convictions. Is that what’s happening here? There are numerous public and private grants and awards tied to driving-under-the-influence enforcement, both for police departments as a whole and for individual officers. Was that a factor here?

Crime-lab analysts should be neutral. Their job performance should be evaluated based on their accuracy. Clearly, something is making at least some of these analysts think there’s a “right” and a “wrong” answer when conducting these tests. Perhaps it’s right there in the name: the Massachusetts State Police Crime Laboratory. A forensic analyst shouldn’t be considered on the same side or team as the police. Hosting these labs under the auspices of police or district attorney’s offices is a big part of the problem.

Yet it continues…..