Under Arizona law, it is illegal to operate a motor vehicle while impaired by drugs and/or alcohol. Typically, alcohol intoxication is measured through a person’s blood alcohol concentration (BAC). The legal limit in Arizona is 0.08 BAC for most drivers.
If you are charged with driving under the influence (DUI) in Arizona, it may be possible to argue that you weren’t actually impaired when driving because of the way that our bodies process alcohol. A person’s blood alcohol concentration levels will continue to rise even after they stop drinking, so a chemical test taken even 15 minutes after driving will lead to a higher BAC reading. Our Arizona DUI defense lawyers can examine the facts of your case to determine ifa rising blood alcohol level is a potential defense to the charges against you.
At Matthew Lopez Law, we represent people who have been charged with a range of criminal offenses, including alcohol offenses such as DUI. We offer free initial consultations so that you will have a better understanding of your rights and options for fighting the charges. Reach out to our law firm today to talk to an Arizona DUI attorney.
What Is Rising Blood Alcohol?
To understand the rising blood alcohol levels defense, you first have to understand how the human body absorbs alcohol. Essentially, when you drink alcohol, only 20% is absorbed in the stomach. Most of the alcohol is absorbed in the small intestine, with a small amount excreted in a person’s sweat, saliva, urine, and breath. This is how chemical tests can detect a person’s BAC after a person blows into a tube.
Once the alcohol is absorbed by the digestive system, it will pass into the bloodstream. Eventually, the alcohol is metabolized by the liver and eliminated. Because the liver can only process so much alcohol at a time, whatever it cannot process remains in the blood…resulting in intoxication.
The rising blood alcohol defense is based on the fact that it takes time for the human body to metabolize alcohol. After a person drinks alcohol, their BAC will rise steadily. It will continue to increase at a rapid rate until it reaches a peak. This typically occurs 30 to 45 minutes after alcohol is consumed, although it may take longer in certain circumstances.
Certain factors affect the rate at which alcohol is absorbed and eliminated in a person’s body. This includes the type of drink, how quickly it was consumed, whether you had food in your stomach at the time, your height, weight, body fat percentage, your gender, your alcohol tolerance, illness, fatigue, and possible interactions with medications. All of this should be taken into consideration when determining whether you were actually intoxicated while driving.
The upshot? It is entirely possible that you were below the legal limit when stopped on suspicion of driving under the influence. Your blood alcohol may have risen as you waited for a chemical breath or blood test, putting you over the legal limit of 0.08 BAC.
Can Rising Blood Alcohol Be Used as a Defense in an Arizona DUI Case?
In many Arizona DUI cases, it is possible to use rising blood alcohol as a defense to the charges. This is usually most successful when a person’s BAC is at or close to the legal limit.
For example, consider a situation where you had 2 drinks with coworkers at happy hour and left the bar shortly after consuming the last drink at 6:15 p.m. You are pulled over at 6:20 p.m. and arrested. By the time you get to the police station and take a chemical breath test, it’s 6:45 p.m. Your BAC reading is 0.08%. If your BAC had been taken at the time that you were stopped at 6:20, it is more than possible that it would have been below the legal limit. In this case, a rising blood alcohol defense could potentially be used.
If your BAC was 0.10, then a rising blood alcohol level defense is less likely to succeed. While your BAC might be higher than it was when you were driving, it probably wasn’t below the legal limit. Other factors may come into play as well, such as testimony from witnesses who can talk about how much you had to drink, when you last consumed alcohol, and when you left in your car.
This timeline can be used by a forensic toxicologist. This expert will consider all of the relevant factors before constructing an estimate of what your BAC was at the time that you were driving.
Of course, Arizona law permits law enforcement to charge a person with a DUI if their ability to operate a motor vehicle is impaired to the slightest degree by drugs and/or alcohol. For this reason, the rising blood alcohol defense is often used to negotiate the DUI down to a lesser offense, such as “wet reckless.” It may be possible to get the charge dismissed entirely depending on the facts of your case.
If a case goes to trial, an experienced Arizona DUI defense lawyer can use this defense as a way to create reasonable doubt as to whether or not you were above the legal limit (or impaired) when driving. It can also be used to discredit the prosecution’s own evidence related to blood alcohol content.
Importantly, it isn’t possible to use this defense if you took a portable alcohol test (breathalyzer) before being arrested. The breathalyzer test will show your BAC right after you were driving. If it shows that you were at or above the legal limit, you can’t use the rising blood alcohol level argument.
Generally, it isn’t a good idea to take a breathalyzer test if you are stopped on suspicion of driving under the influence. It almost certainly won’t help your case, but it can be used to provide cause to arrest someone. It can also undercut any potential defense that you might be able to put forth to negotiate a better deal, get the charges dropped, or create reasonable doubt at trial.
When arrested for driving under the influence, you may believe that your only option is to plead guilty. In reality, there are many possible defenses to these charges. Our team of seasoned Arizona DUI defense attorneys will evaluate the facts of your case, consult with experts, and put together strong legal and factual defenses to the charges against you.
Charged with a DUI? Contact Matthew Lopez Law Today.
When you drink alcohol, impairment doesn’t happen immediately. This truth is the basis of the rising blood alcohol defense. Simply put, your blood alcohol concentration at the time of testing might be much higher than what it was when you were driving. Our Arizona DUI defense lawyers can use this fact to defend you against DUI charges.
Matthew Lopez Law represents people charged with DUI, extreme DUI, and super extreme DUI throughout Arizona. With significant experience in DUI defense, we understand the science behind intoxication and how the state tests for it. We use this knowledge and expert witnesses to develop strong defenses to DUI charges. To learn more or to schedule a free consultation with an Arizona DUI attorney, contact our law offices today at 480-608-9998 or fill out our online contact form.
Related: Can You Challenge a Field Sobriety Test in Arizona?