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The Rising Blood Alcohol Defense

California Vehicle Code 23152(b) makes it illegal to drive with a BAC level of 0.08% or more at the time of driving.  The Rising Blood Alcohol defense argues that while you were driving your BAC was below 0.08%, and when you took the breath test, at least 15 minutes after being pulled over, your BAC continued to rise above 0.08%.  How is this possible?

When alcohol enters your body, it takes on average 50 minutes to 3 hours to completely absorb into your bloodstream. The absorption rate can be affected by many factors such as whether you ate any food while drinking or how quickly you drank. So, if you’re pulled over and your BAC is tested before the absorption process is complete, then your BAC is still rising.

For example, you were pulled over at 12 pm. 15 minutes later, you took the Preliminary Alcohol Screening Test, aka breath test, and your BAC was 0.10%. 15 minutes later, you took the blood test at the police station, and your BAC was 0.14%.  In 15 minutes, your BAC rose 0.04%. So it can be implied that when you were pulled over at 12 pm, your BAC was only 0.06%, and because the absorption process was not done, it continued to rise to 0.10% when you took the breath test 15 minutes later. Since your BAC was only 0.06% at the time of driving, you did not violate California Vehicle Code 23152(b).

Remember, it is your BAC at the time of driving, not at the time of testing, that matters.

Contact Sacramento DUI Attorney Matthew C. Tabo at The Tabo Law Firm, (916) 504-2660, to discuss whether or not this defense applies in your case.

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