Hampton Roads DUI Defense of Rising Blood Alcohol

If you were pulled over under suspicion of drunk driving, the officer may have ordered you to take a breath test to see what your blood alcohol content was. An individual is considered over the legal limit if their blood alcohol content is 0.08 percent or greater. However, even if your blood alcohol level was above the legal limit, a lawyer may be able to use a term called rising blood alcohol as a defense. This defense may be useful if the portable breath test result is significantly different from the official results at the police station. Another situation is when there was a significant length of time between when the test was taken and when the stop actually occurred.

If you have been charged with a DUI following taking a blood alcohol test, you may want to consult with a seasoned DUI lawyer who is experienced in using a DUI defense of rising blood alcohol in Hampton Roads.

Defining Rising Blood Alcohol

Rising blood alcohol means that a person’s blood alcohol content may have risen between the time they were actually tested for alcohol use and the time they were driving. How high an individual’s blood alcohol level is will vary with every person. It usually takes a person an hour and a half to process each drink that they consume. At a certain point throughout the time a person is spending drinking, their blood alcohol level will reach a peak.

Defense Evidence for Rising Blood Alcohol

The most important part of a Hampton Roads DUI defense of rising blood alcohol is for a person to show that there is a reason to believe that they were not as intoxicated at the time they were driving as when the test was taken.

An individual can compare the times from when they consumed alcohol, what time the test was given, and what time they were stopped by police. For example, a person may have admitted to drinking 10 minutes before they were pulled over, but the test may not have been given until an hour and a half after the interaction.

The test is still admissible in court, however, at this point, the defendant’s skilled attorney could argue that the hour and a half wait caused their blood alcohol levels to rise. A person could use the field sobriety test to their advantage. It is possible that when someone took the test they showed some level of intoxication but not beyond the legal limit. One of the big differences in Virginia, as opposed to other states, is that a breath test or a blood test is a rebuttable presumption, meaning that the judge is not bound by the results of those tests.

Persuading Judges and Jurors

The legislature passed implied consent laws that say a person’s blood alcohol level in their test deemed to their blood alcohol level as long as the testing is done within three hours of the driving incident. Unfortunately, this is bad science.

People know enough about alcohol absorption to understand that a person’s blood alcohol level will change over a span of three hours. The reason that this defense can be persuasive to judges and jurors is that it is fairly obvious that this law was passed for purposes of judicial economy. It can be persuasive because people can present scientific evidence showing that the law is applied incorrectly. Most people who have consumed alcohol will be familiar with the idea that a person’s blood alcohol level may not have been as high as it was at the time of the test.

How a Hampton Roads Attorney Could Help

A lawyer can help present Hampton Roads DUI defense of rising blood alcohol by documenting that the defendant drank shortly before they got in the car and there is a reason to believe there is a discrepancy between their field sobriety performance and when they were tested. An attorney will be sure to show any piece of evidence showing that the results of any alcohol test are not an accurate representation of the driver’s alcohol content at the time they were driving.