Fighting Your DUI Charge: Rising Blood Alcohol Defense

You probably know that blood alcohol content (BAC) plays a critical role in many DUI cases. Furthermore, the law as it stands in Florida may make it seem like the deck is stacked against the driver. Specifically, here in Florida if your BAC is .08 or higher, that alone may be sufficient to support a conviction for the charge of DUI. However, even if your BAC is below .08, you may still be charged with and even convicted of driving under the influence. But an experienced DUI attorney may be able to challenge that BAC reading. For example, the reading may be challenged on the basis of:

  • Improper procedures or administration by an officer or other person who wasn’t properly trained to administer and read the test
  • Faulty or unreliable machinery
  • Machinery that hasn’t been properly calibrated or maintained
  • An artificially high reading due to some sort of medication, such as toothache gel or some cough medicines
  • An artificially high reading due to a medical condition

These are just a few examples of ways your Jacksonville DUI attorney may be able to call blood alcohol and breath alcohol testing into question. But, did you know that there may be a way to fight BAC-based DUI charges even if the machine was working properly and none of these potential flaws in the process apply?

Here’s why: for at least some period of time after a person consumes alcohol their blood alcohol level continues to increase.

Blood Alcohol Levels Over Time

The general assumption many make–and the one prosecutors hope juries will make–is that the amount of alcohol in a person’s blood is dropping from the time they stopped drinking. By that reasoning, a driver’s BAC thirty minutes after an arrest for suspected drunk driving would always be lower than it was when they were operating the vehicle. But, science says otherwise.

Like most substances, alcohol takes time to work its way through your system. When you stop drinking, the alcohol in your stomach and intestines continues to be absorbed into the bloodstream. Typically, that process continues for somewhere between 30 minutes and two hours. That means the average person reaches “peak BAL” at some point 30 minutes or more after drinking. But, in some cases, it can take much longer.

Here’s an extreme example to illustrate how it works.

Imagine that Erin, a 125-pound woman who hasn’t had any other alcohol downs two shots of liquor, then gets immediately into her car to drive home. Now based upon her weight and the amount of alcohol consumed, her peak BAC, or the highest it should reach will likely be about .085, which is just over the legal limit in Florida. However, since it’s only been a few minutes since she drank the alcohol, she won’t yet have reached that peak level. 

Then imagine that a police officer sees when she slightly crosses the center line. She’s pulled over and admits to having had two shots. The police take her to the station and administers a breathalyzer test. The trip to the station and administrative steps take about 30 minutes, and then they have to wait another 20 minutes as part of the test, before a sample can be provided.  

At this point, it’s been 50 minutes since Erin operated her vehicle. In other words, she may just be reaching peak BAC. 

The breathalyzer test reads .083. Operating a motor vehicle with a BAC of .08 or greater is a crime in Florida, even with no signs of impairment. But, Erin may not be guilty of that crime, since there’s good reason to believe her BAC was lower than .08 when she was operating a motor vehicle. 

Its also worth pointing out that the process of absorbing and metabolizing alcohol isn’t necessarily consistent from person to person, nor from one situation to another. Some of the factors that can impact how long it takes to reach peak BAC include:

  • Whether and how much the person has recently eaten
  • Health factors, including liver and digestive health
  • How quickly the alcohol was consumed

For example, when you drink alcohol on a full stomach, that alcohol is absorbed into the bloodstream more slowly. That’s because one way alcohol is absorbed is through the stomach lining. When there’s food in the stomach, that process slows down. That means if Erin had those two shots in a restaurant after eating a large meal, her BAC might not reach peak levels until significantly more time had passed.

Drinking pace matters, too, because a healthy liver can only break down about one drink per hour. So, if you consume one drink per hour across three hours, your BAC won’t ever reach the same peak as you would consuming three drinks in one hour.

Of course, breathalyzer machines and blood tests don’t always give you a complete picture. They only give a blood alcohol level at a specific point in time: the point when the test was conducted or the blood was drawn. But it’s important to consider how the process of alcohol absorption and metabolism work when dealing with a charge of DUI, and an experienced DUI defense attorney can help with that.

Using the Rising Blood Alcohol Defense

There’s no quick and easy way to determine whether the rising BAC defense may be applicable in your case. Because there are so many variables in play, establishing that a BAC reading does not accurately reflect the actual alcohol in your blood while you were operating a vehicle requires expert analysis and testimony. If you’ve been charged with DUI and you believe that you may have a rising blood alcohol defense, it’s important to work with a seasoned local Jacksonville criminal lawyer that specializes in DUI convictions and knows how to assemble the type of evidence necessary to effectively present this defense.

Jacksonville DUI attorney Matthew Lufrano has devoted his career to helping people who have been charged with crimes in Florida. Mr. Lufrano is a Board Certified Expert in Criminal Trial Law, and knows from experience how important it is for you to find the best DUI lawyer for your situation. That’s why he offers free consultations to people facing DUI charges and other criminal charges in and around Jacksonville.

Schedule yours now. Just call 904-513-3905.