What is a 'Rising Blood Alcohol' Defense in a DUI Case?

Blood TestThere are a number of DUI defenses that may be argued when representing an individual charged with a DUI offense. The prosecution must be able to prove that the defendant’s BAC was 0.08 percent or above at the time that he or she was driving a vehicle. However, if the defendant was experiencing a “rising blood alcohol,” the defense may be able to show that the driver’s BAC at the time of driving was actually under the legal limit.

Alcohol Metabolism and Rising Blood Alcohol

When a person drinks alcohol, his or her blood alcohol content will slowly rise as the alcohol enters the person’s system, plateau, and then fall back down to zero as the body eliminates the alcohol. The BAC rise does happen instantaneously and person’s BAC will slowly rise after alcohol has been consumed.

Rising Blood Alcohol and DUI

In order to prove a DUI case, the prosecution will present the results of breath or blood tests that show the defendant’s BAC. However, these tests only show the driver’s BAC at the time the test occurred. Sometimes, the test is not conducted until hours later. If a driver was experiencing a rising blood alcohol, the results of the test may show a BAC of 0.08 percent or higher while the true BAC at the time of driving may have been below 0.08 percent. If the defense can establish that the defendant’s BAC was below the legal limit at the time of driving, there may be grounds to have the DUI charges rejected or dismissed.

Rising Blood Alcohol and Backward Extrapolation

In pursuing a rising blood alcohol defense, it may be necessary to use the services of a toxicology expert who can perform an analysis based on the available evidence to determine the driver’s actual BAC at the time of driving. The expert will look at evidence such as the timing of alcohol consumption and the amount of alcohol consumed, the defendant’s age, sex and weight, the results of the preliminary alcohol sensor (“PAS”) test, if available, and the results of the breath or blood test. Based on this evidence, the toxicologist may be able to perform a retrograde extrapolation analysis to show that the defendant had a rising BAC and was actually under the legal limit at the time of driving.

In many cases the results of the PAS test taken during the DUI investigation will be lower than the results of the breath or blood test taken later after the driver has been arrested. This would be clear evidence that the defendant was experiencing a rising blood alcohol level.

The prosecution may present their own expert witness to show that the defendant’s BAC was actually above the legal limit at the time of driving. The defense would be able to cross-examine the expert and present its own expert to testify about the defendant’s BAC at the time of driving.

Where there is a strong rising blood alcohol defense, the prosecution may consider offering a reduced DUI charge, such as wet reckless pursuant to California Vehicle Code Section 23103/23103.5 VC, “dry reckless” under California Vehicle Code Section 23103 VC or exhibition of speed in violation of California Vehicle Code Section 23109(c) VC.

If you have been charged with a DUI offense and want more information about the rising blood alcohol defense, it is critical that speak with a knowledgeable DUI attorney as soon as possible. As a former Deputy District Attorney with over 14 years of prosecutorial experience, Michael Kraut understands how to effectively fight DUI charges. Mr. Kraut works with the top toxicology experts in the area in order to ensure every avenue of defense is fully explored.

For more information about DUI and the rising blood alcohol defense, and to schedule your free consultation, contact Michael Kraut at the Kraut Law Group located at 6255 Sunset Boulevard, Suite 1480, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453.

Share |
Client Reviews
He gave me the peace of mind that my DUI case was going to be resolved. He fought for what it was needed and helped me by answering all my questions. Mike is not an average attorney. He’s a very experienced, honest and straightforward person that is there for you!
★★★★★
I hired Attorney Mike Kraut and I'm am so happy and grateful that I did! I was arrested for a DUI because my BAC level was over the .08 limit. I ended up getting a wet and reckless instead of a DUI. I still have to do some classes and I'm on probation, but I do not have a DUI on my record. If you have a DUI hire Attorney Kraut, he definitely knows his stuff!
★★★★★
Avvo User
There aren't enough positive words to write about Mike, but let me be clear that this is the only lawyer worth hiring in Los Angeles. Mike is professional, caring, and an absolute champion at winning in court.
★★★★★
Kyle, Avvo User
Mike Kraut is not a typical lawyer. He is a straightforward person with a true heart and a sympathetic ear. He is also smart and connected and he cares about the people who seek out his help. He got my son out of a jam. He did it quickly and painlessly. I recommend Mike Kraut to anyone that needs his services.
Thank you Mike for helping my son.
★★★★★
Mark, Avvo User
Michael Kraut is a rock star lawyer. I was really happy and satisfied with the results I received from Michael and his team. A few months back I was being accused of a serious felony. Mike gave me sound legal advice and worked diligently to clear my name. Mike was great at always keeping me updated and returning calls. Great, great lawyer I cant say enough about this man!
★★★★★
Eric, Google User
How can I express how relieved and pleased I am with Michael's professional abilities to have my Felony brought down to a misdameanor to a possible dismissal with deferment. With his care my life has been turned around and cannot say how helpful he's been not only in my case but life. He, himself has changed how I view criminal lawyers. Thank you so much Michael!
★★★★★
Owen, Google User