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The Rising Alcohol Defense in a Los Angeles DUI Case

When you’ve been arrested for under California Law for the offense of Driving Under the Influence (“DUI”), it will be up to the State to prove in front of a California Criminal Judge that you were operating a vehicle while intoxicated. California law is specific in that operating a motor vehicle with a Blood Alcohol Concentration (“BAC”) of 0.08% or more is intoxicated for the purpose of the DUI statute. There are defenses that can be used even in cases where your BAC is above the legal limit.

BAC and Rising Blood Alcohol

What is BAC? Typically, BAC refers to the percentage of ethanol in the blood. The more alcohol is consumed, the higher the BAC will typically be. But alcohol doesn’t enter your bloodstream the second you take a drink. Alcohol is absorbed through the gastrointestinal tract, and the rate it is absorbed and enters your bloodstream can be affected by factors like stress levels, how recently you have eaten, and whether the alcoholic drinks were carbonated. As the ethanol is absorbed into your body, your BAC level slowly rises. Eventually the ethanol dissipates and your BAC levels will slowly drop again. Therefore, the progress of your BAC after consuming alcohol is as follows:

1) Absorption, which is the process of alcohol entering your bloodstream. Your BAC rises during absorption; and

2) Peak, or Peak Absorption, is the when the alcohol in your system reaches your highest point. This coincides when you stop consuming alcohol, and lasts until the alcohol in your system begins to dissipate; and

3) Dissipation, which is the process of alcohol leaving your bloodstream. Your BAC falls from the peak back to zero.

It the delay between consuming alcohol and the rising BAC that makes the Rising Alcohol Defense viable during the absorption phase. Remember, the State must prove that you were intoxicated at the time you were operating a motor vehicle. It is possible to consume enough alcohol that will peak your BAC above the legal limit in the future, but you are not in violation of DUI laws until your BAC level actually hits .08%. There are methods that a DUI attorney or toxicology expert can use to show a court that your BAC test results were higher than your actual BAC level at the time of driving. This can be done through a type of analysis known as retrograde extrapolation, which takes information about your age, sex, weight and how much alcohol you consumed to and compare that with the BAC test results to determine if the BAC levels were rising or falling.

An Example

Let’s look at an example. Fred is planning a night out with his friends. Shortly before leaving the house, Fred consumes a few shots and gets into his car. He doesn’t feel impaired in any way, as the alcohol has not yet absorbed into his bloodstream. As he is driving to the bar, Fred makes an illegal left turn and is pulled over by the officer. After the Officer smells alcohol and questions Fred, Fred answers truthfully that he has had a few drinks. Fred is asked to perform field sobriety tests and to take a portable breathalyzer test, which he agrees to. The portable breathalyzer reflects a .03% BAC, and Fred is informed he has failed his field sobriety test. Fred is arrested on suspicion of DUI. Once Fred arrives at the Police station, the officer requests he take a BAC test. Since refusing the test can lead to additional charges, Fred complies. The test is administered an hour after his arrest, and Fred’s BAC is a 0.1% which is well above the legal limit.


Handling a Rising BAC Defense is a situation best handled by a Los Angeles DUI Lawyer. An experienced attorney will be able to correctly frame the issue not as whether you might have broken the law at some point after drinking, but that at the time of the arrest you were not yet intoxicated. If you believe the Rising BAC Defense may be a factor in your own case, do not hesitate to contact a DUI attorney today.

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