If you have been arrested and charged with driving while intoxicated, or another alcohol related driving offense, in the State of California you are likely already aware of the harsh judicial and non-judicial penalties you face if convicted. The days of getting a “slap on the wrist” for drunk driving are long gone. Instead, motorists now face jail time, the loss of driving privileges, and even lost employment opportunities for a DWI conviction. Avoiding a conviction, therefore, is more important now than ever for a motorist charged with DWI. Among the various commonly used defenses to DWI is the “ Rising BAC ” defense. Only an experienced California criminal defense attorney can evaluate the facts of your arrest and provide an opinion as to whether the rising BAC defense is applicable to your case; however, if may be helpful as well for you to understand the basic premise of the defense.
California Vehicle Code Section 23152 states as follows:
“It is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”
In essence, it is illegal to operate a motor vehicle while your BAC level is 0.08 or higher in New York. When a motorist is arrested for DWI the suspect is taken into custody and transported to the jail or station house. At that point, the suspect is typically asked to submit to a breath test, the purpose of which is to gather additional evidence of the suspect’s guilt. If the breath test shows a BAC level of 0.08 percent or higher the test results will be used as evidence at trial. As a general rule, a breath test is given a substantial amount of time after the motorist was actually driving the vehicle. Anywhere from 30 minutes to over an hour may elapse between the time the motorist is pulled over and a breath test is given. If the test results show a high BAC level (0.10 or higher) it may be safe to assume that the motorist’s BAC level was over 0.08 percent at the time the motorist was operating the vehicle; however, if the test results are closer to 0.08 an argument can be made that when the motorist was actually driving the vehicle he or she had a BAC level below the legal limit.
The basis of the rising alcohol defense is found in how alcohol is metabolized in your system. In short, when you consume alcohol it makes its way through your body and into your blood stream. This takes some time. If your BAC level was on the way up, or “rising”, at the time of the arrest it would test higher a short time later, explaining the higher test results. If you consumed alcohol shortly before getting behind the wheel and then tested close to 0.08 percent when given a breath test you could be a good candidate for using the rising BAC defense. Consult with an experienced California criminal defense attorney for more details.