The rising blood alcohol defense questions your blood alcohol level at the time you were driving rather than the time the blood alcohol test was administered at your DUI Hearing. This defense is based on the fact that, after you have been drinking, your blood alcohol level rises as the alcohol moves from your digestive system into your bloodstream. While your blood alcohol is rising you are in what is called the absorption phase. Later, as your liver breaks down the alcohol your body, the levels of alcohol in your system will begin to fall and you will be in what is called the elimination phase.
If you were tested during the rising or elimination phase, then it is possible that your blood alcohol was lower when you were driving than when you were tested. It is then possible to convince a jury that you were under the legal limit when you were driving.
The success of the rising blood alcohol defense depends on two very important factors. The first factor is reliable and trustworthy testimony that you were drinking shortly before your arrest. The second factor is based on your performance during any field sobriety tests. With these two important factors in hand, an attorney can make an effective argument that your blood alcohol level was less than .08% even though your test indicated a blood-alcohol level greater than .08%.
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