Rising blood alcohol is not a term defined under the law, but rather a theory of legal defense in which the defendant argues that their blood alcohol content, as measured at the time of testing, was not their blood alcohol at the time of the operation of the motor vehicle because of the time that it takes a person’s body to process alcohol and, therefore, their alcohol level at the time of operation would be significantly lower than at the time of testing.
This is generally known as a rising BAC defense. It is a seldom-used defense because it requires a number of evidentiary admissions at the time of the arrest and usually requires expert testimony about certain other pieces of medical evidence. However, in certain situations, it may make a compelling defense. An experienced criminal defense attorney could help build your Leesburg DUI defense with rising blood alcohol if applicable.
Generally, a person’s blood alcohol level will not reach it’s peak for at least 30 minutes to one hour after the last alcoholic beverage. As long as an arrest is made within three hours of the time of operation, the blood alcohol test taken at the time of arrest is used to prove the blood alcohol content at the time of vehicle operation.
The usual case in which a rising BAC defense might be used is if a person had very good performance on a field sobriety test, normal driving behavior to prove operation, and very few (if any) indications of intoxication, but they blew a significantly higher number on the breathalyzer test. This is usually paired with an admission that alcohol was recently consumed. This is a rare scenario, and that is the only one that supports the basis for even getting an expert involved to try to prove rising BAC. Generally, if someone is going to prepare a rising BAC defense, they are going to need to know the specific amount of alcohol that was consumed, the time it was consumed, the time they were driving relative to the time it was consumed, the time of the arrest, and well as other factors that a medical expert may need to provide in order to pursue the defense. The defendant is probably going to need an expert on blood alcohol metabolism and blood alcohol rates, the saturation rate, and elimination rate.
Most rising BAC defenses are heard by a judge because in Loudoun County and Leesburg DUI cases at the general district court level, there is no right to a jury trial. Most or all DUI cases start out as bench trials, but they can eventually go to a jury on appeal. When a jury is involved, strong testimony from a medical expert could go a long way. It is a common understanding that intoxication does not occur instantly after the consumption of alcohol. As such, it is reasonable that a jury might look at the evidence and understand that the driver was likely under the legal limit at the time of their driving.
Since there is a myth and some misconceptions about rising BAC, when it is used, and especially how useful it is, a Leesburg defense attorney could help you understand whether or not a rising BAC defense may be helpful to your case and assess potential risks. If you are currently facing DUI charges, contact a defense attorney today to see if you may be able to use a Leesburg DUI defense with rising blood alcohol content. A DUI lawyer could identify the best strategy possible for your case.
Northern Virginia Criminal Defense Group
