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Rising blood alcohol is a very common defense to a DUI charge
that sometimes can get charges reduced or even dismissed.
And, basically, it goes like this.
Suppose that I drink four cocktails.
And it's enough alcohol ultimately to get my BAC
to a 0.10.
Now, I'm not going to have those drinks and instantly become
a 0.10.
What's going to happen is they will absorb into my bloodstream
slowly.
And it may take a period of time,
sometimes up to two or three hours for that alcohol
to fully absorbed into my bloodstream, and for me
to reach my peak BAC.
Now, suppose I had my four drinks at 10:00 PM.
I leave the bar.
At 10:30 I get pulled over.
At that point, my BAC may have risen to a 0.06.
But the officers arrest me, take me to the police station.
1 At 11:15 PM, 45 minutes after driving,
I finally take my blood or breath test.
And the reading comes back 0.09.
Now, police and prosecutors would look at that and say,
he's 0.09.
He's over the limit.
The case is closed.
But as you can see, it's not that simple.
Because the law says, the prosecutor
has to prove what my BAC was at the time of driving.
There's no law in California that says,
it's illegal to be above the limit 45 minutes
or an hour after driving when you
take a test at the clinic or the police station.
It's only illegal if you were above the limit
when you were actually behind the wheel.
So the prosecutor has to extrapolate backwards and show
what my BAC would have been at the time of driving.
And as you can see from our example,
even though I tested above the limit,
I was actually below the limit when I was driving.