Prosecutors often use blood alcohol tests to establish that a defendant driver was intoxicated with a blood alcohol concentration that’s .08% or more at the time you were operating your car. Sometimes, you can try to use a rising alcohol defense to show that your blood alcohol content was over .08% at the time you were chemically tested, but was less than .08% when you were driving because of the absorption rate of the alcohol. If you need a strong, aggressive defense against drunk driving charges, experienced Phoenix DUI attorney James E. Novak may be able to help.
Generally, alcohol takes a while to be absorbed into your blood stream. Numerous factors influence absorption time including your gender, any medications you’re on, what food you’ve eaten and what sorts of drinks you had, it may take up to 2 hours for alcohol to fully enter your blood stream and reach a peak absorption level. If you drink at a restaurant immediately before going home, and you live only a short distance away, the alcohol you drank may not have entered your bloodstream until after you complete the drive. If you are a woman, you are likely to have less water in your body than a man does, which means your blood alcohol content might go up more quickly than a man’s because you have less fluid to dilute the alcohol.
Whenever you drink, your blood alcohol content will be either rising or falling, so that if you get in a car afterward, you blood alcohol content may be below. 08%, even if a test reflects .08%. The alcohol you drink is absorbed into your stomach and small intestine, and during the process of absorption it will be rising. If you stop drinking, the absorption will stop and your blood alcohol content will peak before it falls. If, for example, you drank two glasses of wine at a restaurant and were pulled over about twenty minutes after that, and then a chemical test was administered that shows your blood alcohol content was .08%, you can argue that your blood alcohol content was below .08% at the time you drove.
If you were pulled over for a suspected DUI, and your body was still absorbing the alcohol you drank, your blood alcohol content may not accurately reflect what your blood alcohol content was at the time you drove. Often you’re asked to submit to chemical testing after being arrested, and the amount of time it takes to be tested can matter to your defense.
However, sometimes the timing of the chemical test in relation to your driving can work against you. For example, if you are initially tested and have a .15 and your second chemical test is .08%, your blood alcohol content was probably more than .15% while you were driving. This can result in extremely serious charges. Often an investigating officer will try to establish a timeline for your driving by asking you details like how many drinks you had, where you were drinking, and what time you left.
The rising curve defense is also called the rising alcohol defense. If you use this defense, you would argue that you were not actually under the influence of alcohol and didn’t have a blood alcohol concentration of .08% or higher at the time you were driving, but rather that your blood alcohol content got to that level after your arrest. If you have a .08% blood alcohol content measurement, you may be charged with a per se DUI in Arizona. However, you can also be charged if you were driving while impaired to the slightest degree. Under A.R.S. § 28-1381(A)(1), it is a crime to drive while impaired to the slightest degree from drugs, alcohol, or a combination of these. The prosecuting lawyer need not prove that your blood alcohol content was .08% or higher.
If you believe the rising curve defense may apply to your DUI case, contact experienced lawyer James E. Novak. Mr. Novak is a former prosecutor who represents defendants charged with drunk driving throughout the Phoenix area including Mesa, Scottsdale, Chandler, Gilbert, and Maricopa County. Contact him at (480) 413-1499 or via our online form.