Orange County Criminal Defense

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Rising Blood Alcohol Defense

April 10, 2011

Fred Thiagarajah

I recently lost a DUI trial at the Harbor Justice Center in Orange County, where I argued a rising blood alcohol defense.  Most attorneys probably won’t tell you about the trials they lost, but I think becoming a better defense attorney involves reviewing the trials you’ve won and lost.  The only way to improve is take a look at what factors led to the loss of the trial.

First – a quick explanation on what is a rising blood alcohol defense for a DUI.  Alcohol takes time to be absorbed into the blood stream.  Depending on certain factors (such as food and type of drink), alcohol can take 15 minutes to two hours to enter your blood stream and reach peak absorption.  In theory, if you drink just a few minutes before you drive and then you drive just a short distance, the alcohol from that drink hasn’t entered your blood alcohol system while you were driving.  It would only be peaking in your blood stream after you were done driving.  That means, in theory, if you drank at 10 pm, and drove at 10:05 pm,  you could argue that the alcohol wasn’t in your blood while you were driving.  This defense is only feasible under certain conditions.

In this case, my client’s blood alcohol level was too high for the rising blood alcohol defense to seem believable.  He was seen driving at 11:52 pm and when he was pulled over, he told the officers his last drink was at 11:45 pm.  That’s a perfect set-up for the rising blood alcohol defense.  Furthermore, he refused the PAS test (which was a good move) and chose the breath test.  The problem was that he blew a .12/.13 around 12:55 am.  That meant he had to consume a whole lot of alcohol in a very short period of time right before he got behind the wheel of his car.  My client testified that he did just that.  He said he had two double tall vodka tonics and that he finished most of his drinking within the 15 minutes before he left the bar.  The jury didn’t buy it.

In this particular case, the jury actually hung 8-4 on the (b) count.  At least 4 jurors didn’t believe his blood alcohol level was .08% or higher, which is great.  However, the jury convicted my client of the (a) count — they believed he was “under the influence”.  First, the officer observed that my client’s car was swerving.  Although my client had an innocent explanation for the swerving, the jury believed it was due to alcohol.  Second, my client did poorly on his field sobriety tests, and the jury didn’t believe that he could be fine one moment and then drunk the very next moment.  So if he was doing poorly on his field sobriety tests, then 10 minutes earlier, while he was driving, he was under the influence.

In order for the rising blood alcohol defense to be believable, the blood alcohol level would have to be lower.  If a client’s blood alcohol level was .09 or .08, then a client could testify that he only had one drink right before he left the bar, and that one drink wouldn’t be in his system yet while he was driving, but would’ve put him over the limit by the time he’s given the chemical test.  It would also only be helpful if the client wasn’t pulled over for driving that’s typically associated with DUIs, i.e. swerving, and if the client did reasonably well on the field sobriety tests.

If you have any questions about the rising blood alcohol defense or other DUI defenses, don’t hesitate to give me a call.  I love what I do and I’m always interested in discussing criminal defense tactics.


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