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When is a rising BAC an effective DUI defense?
Question:
When is a rising BAC an effective DUI defense?
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Get Informed - DUI/DWI Law Information
We've got a large library of DUI and DWI law articles, Q&A's and other resources. Start here to learn about DUI laws, arrests, defense, penalties and more.
DUI Basics
Get the low down on the law and what you can expect if you're arrested and charged with a DUI.
Get the low down on the law and what you can expect if you're arrested and charged with a DUI.
Your DUI and the DMV
Besides the court and criminal charge the Department of Motor Vehicles will also bring you grief.
Besides the court and criminal charge the Department of Motor Vehicles will also bring you grief.
DUI Arrests, Police Reports, Arraignments, and Fees
After you're arrested, booked and released, you'll need to get ready for your arraignment.
After you're arrested, booked and released, you'll need to get ready for your arraignment.
DUI/DWI Charges and Penalties
After a DUI conviction expect fines, license suspension, DUI school, and sometimes jail.
After a DUI conviction expect fines, license suspension, DUI school, and sometimes jail.
Fighting a DUI
You may have options to lessen the sentence, get a reduced charge or get the case dismissed.
You may have options to lessen the sentence, get a reduced charge or get the case dismissed.
Getting Help with a DUI/DWI Charge
There are some things you can do yourself and some which require the help of an attorney.
There are some things you can do yourself and some which require the help of an attorney.
Following being stopped by an officer who suspects you of a DUI, you will be asked to perform some field sobriety tests. In most states, the implied consent law is considered accepted by those who have accepted their driver's license. This means that in many jurisdictions those who refuse to submit to a Breathalyzer test will have their license suspended on the spot and possibly receive other charges as well. This Breathalyzer test is the most commonly used method of determining a person's blood alcohol content (BAC). This has however, also led to a new defense called the "rising BAC defense."
There are several DUI defenses that are used, but this rising BAC is relatively new. It still depends upon each state's laws regarding the legal Blood Alcohol limits that are used in the support of a DUI charge. Some states have more severe charges when the BAC level is found to be far over the legal limit. But in most every case a BAC of .08 or higher means you will be facing a DUI charge.
Your attorney, who is going to be interested in building the best defense for you he can, will want to know your BAC level and how it was determined. The reason he will want to know this information is because the rising BAC defense is based on the fact that when a person drinks alcohol it takes between 45 minutes to 3 hours for the alcohol to be totally absorbed into a person's system. That means that if you were arrested at 1 a.m. for a DUI and were not tested until 2 a.m. your BAC will be higher at the time of the testing than it was when you were actually driving your car. This is an important point since your DUI conviction is based on what your BAC was at the time you were driving your car, not an hour or more later.
In order to make this defense effective it is necessary to bring in a toxicology expert to testify to this physiological condition and prove what a person's actual BAC level was. Police, however, are aware of this defense and will attempt to preempt it by asking the driver questions at the time of the arrest, such as the specific number of drinks they consumed that evening. Also, when a BAC test is done within a certain legal time limit, most jurisdictions will see that BAC level as valid.
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