What is a rising BAC (Blood Alcohol Content) defense?

UPDATED: Jul 18, 2023Fact Checked

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UPDATED: Jul 18, 2023

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UPDATED: Jul 18, 2023Fact Checked

It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of driving — not at the time of being tested. Since it takes between 45 minutes and 3 hours for alcohol to be absorbed into the system, an individual’s BAC may continue to rise for some time after he is stopped and arrested.

Commonly, it is an hour or more after the stop when the blood, breath or urine test is given to the suspect. Assume that the result is .12%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .07%. In other words, the test result shows a blood-alcohol concentration above the legal limit — but his actual BAC at the time of driving was below. The other side of that is if a person is intoxicated while driving and is stopped, and is no longer absorbing alcohol, as time elapses his blood alcohol level would begin to fall. For that reason, and also to help rule out a rising BAC defense, police officers typically try to do testing as soon as possible.

In addition, this defense is why officers always ask exactly how many drinks were consumed, and most importantly, when. The prosecution is usually helped out by legislation that creates a presumption that the BAC level found at the time of testing was the same as when driving, as long as the test is done within a set time limit. This puts the burden of proof on the defendant, which means he has to hire a toxicology expert to prove his BAC at the time of driving.

Related Articles:
The Advantages of Hiring a Drunk Driving Attorney
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Case Studies: Rising BAC (Blood Alcohol Content) Defense

Case Study 1: The Late-Night Party

John Doe was pulled over by a police officer late at night for suspected drunk driving. The officer conducted a breathalyzer test approximately an hour after the stop, which showed a BAC level of 0.12%. However, John’s attorney argued the rising BAC defense, claiming that his BAC at the time of driving might have been significantly lower.

With the help of a toxicology expert, John’s defense team demonstrated that he continued to absorb alcohol between the time he was stopped and the breathalyzer test. Ultimately, the rising BAC defense led to a reduction in charges, and John faced lesser penalties.

Case Study 2: The Responsible Driver

Jane Smith was involved in a minor car accident and was taken to the hospital for medical evaluation. Police officers arrived at the scene and later conducted a blood test approximately two hours after the accident. The test revealed a BAC level of 0.09%. Jane’s defense attorney raised the rising BAC defense, arguing that at the time of the accident, her BAC might have been below the legal limit.

To support this claim, Jane provided receipts and testimonies from witnesses at the restaurant she had dined in just before the accident. The evidence indicated that she had only consumed a small amount of alcohol and that her BAC had risen after the collision due to continued alcohol absorption. As a result, Jane’s case was dismissed, as the rising BAC defense created reasonable doubt about her level of intoxication at the time of the accident.

Case Study 3: The Timely Testing

Michael Johnson was stopped by the police on suspicion of driving under the influence. The officers administered a breathalyzer test promptly, within 30 minutes of the stop, and recorded a BAC level of 0.10%. Despite his attorney’s efforts to raise the rising BAC defense, it was challenging to establish that his BAC at the time of driving was lower.

The quick and timely testing by the police worked in the prosecution’s favor, as it made it difficult for Michael’s defense to present compelling evidence supporting the defense. The court upheld the results of the breathalyzer test, and Michael was convicted of DUI.

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Jeffrey Johnson

Insurance Lawyer

Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

Insurance Lawyer

Mary Martin

Published Legal Expert

Mary Martin has been a legal writer and editor for over 20 years, responsible for ensuring that content is straightforward, correct, and helpful for the consumer. In addition, she worked on writing monthly newsletter columns for media, lawyers, and consumers. Ms. Martin also has experience with internal staff and HR operations. Mary was employed for almost 30 years by the nationwide legal publi...

Published Legal Expert

Editorial Guidelines: We are a free online resource for anyone interested in learning more about legal topics and insurance. Our goal is to be an objective, third-party resource for everything legal and insurance related. We update our site regularly, and all content is reviewed by experts.

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