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The “Rising Blood Alcohol Defense”

The most overlooked DUI defense is the rising BAC defense. This addresses the fact that the blood, breath, or urine test only demonstrates the alcohol concentration level at the time the test was taken, rather than the level at the time of driving.

California Vehicle Code § 23152 (b) presumes that if the alcohol test occurs within three hours of driving, the driver is presumed to have a BAC of .08% or more at the time of driving, if the person had (at the time the test was taken) a BAC of .08% or more. However, the rising BAC defense considers the possibility that your BAC was under .08% at the time of driving and rose (due to the normal rate of metabolized alcohol by weight) during the time of the stop and the time the test was taken. The prosecutor will rely on a highly speculative theory called “retrograde extrapolation” that assumes that the body has already absorbed the alcohol by projecting backwards from a later chemical test.

Our attorneys have over 25 years of experience in defending DUI cases. It is important to closely examine police reports, inaccuracies in those reports, or even missing evidence that the Police simply forgot to admit or log properly. Moreover, the field sobriety test (FST) can easily be failed by anyone, under the influence or sober. Therefore, FST’s are not the most reliable form of evidence. Our team will study your police report to find these inaccuracies and other common discrepancies, and use that to gain you the best possible defense.