A rising blood alcohol defense is typically one in which the attorney tries to state that the blood alcohol at time of the actual operation of the vehicle was not consistent with the blood alcohol as tested at a later time pursuant to the Virginia implied consent statute. There are a large number of requirements that must be met to have a valid rising blood alcohol defense.
Rising blood alcohol cases are actually very rare. A strong rising blood alcohol case is based on a thorough analysis of alcohol consumption, time of alcohol consumption, amount of alcohol consumption, time of the last consumed beverage, time of the initial testing at the roadside or other testing procedures, and time of the test on the ECR II machine or the timing of the blood test. Typically, a rising BAC defense requires an expert witness and that expert witness is required to have evidence available that is admissible evidence on that special issue. It is important to work with a Virginia DUI lawyer when making a rising blood alcohol defense, so that they can ensure that this expert testimony is provided.
The peak concentration of someone’s blood alcohol content depends on a variety of factors. It depends on the type of alcohol consumed, the size of the person, the person’s ability to metabolize alcohol, food that the person consumed (either with alcohol or during the day), and alcohol history, meaning the person’s tolerance to alcoholic beverages.
Typically, the peak time is after the consumption of alcohol has been completed. The Virginia Code weakens rising BAC defenses by making assumptions that the test is deemed valid if it occurs within the certain time period of the arrest. It is deemed to be accurate if it occurs within a certain time period of the DUI stop.
A rising BAC case is used as a defense when someone is close to a certain alcohol threshold and the facts dictate that a rising BAC may have occurred. Threshold means that the person may be close to .08 or may be close to traditional thresholds that will require jail time such .15 or .20. If the person is near the threshold or slightly above and the facts indicate that rising BAC may be occurring, then there may be an opportunity for a rising BAC defense.
This defense can be persuasive because it makes sense to a common person and an expert alike. Anyone that has consumed alcohol before understands the moment when one has taken one’s last drink but it “hasn’t hit yet.” That period may not occur for some period of time—especially depending on the type of alcohol, the frequency of consumption, and a variety of other factors. Sometimes it is persuasive in that an individual understands that he or she consumed the drink immediately before driving, and so may not have felt the effects of the alcohol at the time they were driving. Then that person may not feel sober at some period of time later.
If an individual is certain that they may have a rising BAC defense, it is certainly important to contact a Virginia DUI attorney as soon as possible to explore these defenses. Rising BAC is not something that a person can typically present to the court on their own. There are certain evidentiary requirements that are necessary, certain assumptions that are necessary, and certain things that must be accepted and examined.
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