A rising BAC defense is a legal strategy employed in DUI (driving under the influence) cases where the accused argues that their blood alcohol concentration (BAC) was below the legal limit at the time of driving but had risen by the time the BAC test was administered. This defense is often used when there is a significant delay between the alleged offense and the administration of the BAC test.
This defense strategy can be used to reduce or dismiss DUI charges. In this blog, we discuss how the body absorbs alcohol and what factors can affect the success of this DUI defense strategy.
What Is Rising Blood Alcohol Concentration?
Rising blood alcohol concentration (BAC) refers to the fact that people’s BAC continues to rise even after they have stopped drinking. This continued rise occurs because the body needs time to fully absorb and metabolize consumed alcohol.
Key points to understand about rising BAC include the following:
- A person’s BAC reaches its peak level within 30 to 45 minutes after their last drink.
- The rate at which BAC rises can vary depending on factors like body weight, metabolism, and the amount of alcohol consumed.
Understanding How the Body Absorbs Alcohol
BAC levels can change over time because of how the body processes alcohol. When alcohol is consumed, it initially comes into contact with the mucous membranes of the mouth and stomach. These tissues are highly vascular, meaning they have a rich blood supply. Alcohol is quickly absorbed through these membranes.
The majority of alcohol absorption occurs in the small intestine. This long, coiled organ is lined with villi, tiny finger-like projections that increase the surface area for absorption. As alcohol passes through the small intestine, it diffuses into the bloodstream.
Once absorbed, alcohol enters the bloodstream and is carried throughout the body. Factors that affect how quickly alcohol is absorbed in the body include the following:
- Alcohol concentration. The higher the alcohol concentration in the beverage, the slower it is absorbed.
- Food consumption. Having food in your stomach can slow the absorption of alcohol.
- Carbonation. Carbonated alcoholic beverages, like sparkling wine or champagne, can be absorbed more quickly than non-carbonated beverages. This is because of the carbon dioxide in the drinks, which can irritate the stomach lining and increase the rate of absorption.
- Person-specific factors. As we mentioned, a person’s weight, metabolism, and overall health can impact the rate at which their BAC levels rise.
A Quick Note on Absorption vs. Metabolism & Their Effects on Rising BAC
It is important to note that absorption and metabolism are two distinct processes. While absorption explains how alcohol moves from the digestive tract to the bloodstream, metabolism is the process by which alcohol is broken down into substances that can be eliminated from the body.
The rate at which BAC rises depends on the balance between absorption and metabolism:
- Rapid absorption. When alcohol is absorbed quickly, it enters the bloodstream at a faster rate, causing BAC to rise rapidly. Factors like the concentration of the drink, food in the stomach, and carbonation can influence absorption rates.
- Slower metabolism. The liver's ability to metabolize alcohol can vary from person to person. If the liver is slow to break down alcohol, BAC can rise more quickly and stay elevated for a longer period.
In essence, a rapid absorption rate coupled with a slower metabolism can lead to a more significant and sustained increase in BAC.
Implementing a Rising BAC Defense
The success of a rising BAC defense depends on various factors, including:
- BAC test results. It is important that you were close to the legal limit for this defense tactic to work. If your BAC is .20%, which is twice the legal limit, it’s likely you were already over the limit when you started driving, even as your BAC continues to rise.
- Time lapsed. The prosecution must prove that the accused’s BAC was over the legal limit at the time that they were driving the vehicle. The longer the delay between the alleged offense and the BAC test, the more plausible the rising BAC defense becomes.
- Evidence. The defense must present credible evidence to support their claim. This could include testimony from witnesses, surveillance footage, or other documentation that corroborates the timeline of events.
- Expert testimony. Expert witnesses, such as toxicologists or medical professionals, may be called to testify about the rate at which a person's BAC can rise after consuming alcohol.
- Prosecutorial burden. The prosecution bears the burden of proving beyond a reasonable doubt that the defendant's BAC was above the legal limit at the time of driving. If the defense can successfully raise doubts about this, it may undermine the prosecution's case.
- Lack of reckless driving evidence. It can strengthen your case even more if there were no signs that you were driving recklessly or while intoxicated when you were pulled over. For example, not slurring your words or swerving can help your case.
While a rising BAC defense can be a viable strategy, it is important to consult with an experienced DUI attorney to assess its potential effectiveness in your specific case.
Discuss Potential DUI Defense Strategies with Our Attorney
JRLaw, PLC is committed to helping clients develop individualized DUI defense strategies that can help them obtain favorable case outcomes. After reviewing the facts of their cases, we can work with clients to determine whether a rising BAC defense or another strategy can help their case.
We represent clients in a range of DUI cases, including:
- First-time DUIs. Facing a DUI charge for the first time can be scary but our DUI defense attorney can help you navigate the legal process, understand your rights and the charges against you, and potential case outcomes.
- Felony DUIs. In Virginia, a DUI can be classified as a felony if a person has three DUI convictions within a ten-year period or in cases where a person was injured. Let us help you build a strong defense and work to mitigate these charges.
- Multiple DUIs. Should you face a second or subsequent DUI charge, our team can help you work to reduce the charges or work toward a favorable outcome.
- Tourism DUIs. Our team represents out-of-state visitors who have been charged with DUI offenses.
- Underage DUIs. We represent minors facing DUI charges.
- Traffic violations. In addition to representing clients in DUI-related traffic violation cases, we offer counsel to those facing tickets for speeding and reckless driving and can help you work to restore your driving privileges.
Call (757) 447-0080 to get started on your case today!