Driving under the influence (DUI) charges in California carry potentially severe legal penalties, including fines, license suspensions, mandatory alcohol education programs, and even jail time. A Los Angeles DUI attorney should defend anyone charged with DUI in Southern California.

California drivers arrested for DUI typically face charges under two distinct California Vehicle Code sections: Vehicle Code 23152(a) and Vehicle Code 23152(b):

  1. Vehicle Code 23152(a) prohibits driving in California while under the influence of alcohol and/or drugs.
  2. Vehicle Code 23152(b) makes it unlawful for an adult to drive in California with a blood alcohol concentration (BAC) of 0.08 percent or greater.

The Rising Blood Alcohol Defense in California

While it’s illegal to drive with a blood alcohol concentration (BAC) at or over 0.08 percent, the law is concerned only with a driver’s BAC level at the time of driving, not at the time a blood or breath test is administered.

The prosecution’s case often rests on a rebuttable presumption, which states that if a person’s BAC measures 0.08 percent or higher within three hours of driving, the person is presumed to have been at or above that level while driving.

The rising blood alcohol defense challenges and rebuts this presumption by demonstrating that the driver’s blood alcohol concentration was still increasing and was below the legal limit when the driver was behind the wheel.

The Science Behind the Defense

The rising blood alcohol defense focuses on the process of alcohol absorption and metabolism. Alcohol does not enter the bloodstream instantly. Alcohol absorption into the bloodstream can take from 30 minutes to more than an hour, depending on these variables:

  1. Speed of consumption: Drinking multiple beverages in a short period may cause a rapid increase in blood alcohol concentration as the alcohol hits the bloodstream all at once.
  2. Individual factors: A person’s gender, metabolism, weight, and even someone’s mood or stress level can influence the rate of alcohol absorption.
  3. Food consumption: A full stomach, especially with protein-rich or fatty foods, considerably slows alcohol absorption. The food acts as a buffer, preventing alcohol from passing quickly into the small intestine.

By the time someone stops drinking and gets behind the wheel, alcohol from the last drink may not have fully entered the bloodstream, and a subsequent breath or blood test may measure a higher BAC than the driver had while driving.

Alcohol absorption is followed by the peak phase, where the blood alcohol concentration reaches its highest level, and then the elimination phase, where the liver begins to metabolize alcohol and the blood alcohol concentration slowly decreases.

When is This Defense Most Effective?

The rising blood alcohol defense is a specific legal strategy and does not apply to all driving under the influence cases. It is most compelling in the following circumstances:

  1. The BAC is near the legal limit: The defense is most effective when the driver’s BAC measured at or just over 0.08 percent. A BAC of 0.08 to 0.11 percent is a good case for this defense, but if the BAC exceeded 0.15 percent, the defense is less likely to succeed.
  2. A delay between driving and testing: The greater the time between the traffic stop and the chemical test, the stronger the argument for a rising BAC. A delay may include the drive to the police station and the booking process before the official DUI test is conducted.
  3. Absence of observable impairment: If the police report shows no signs of erratic driving, slurred speech, or poor field sobriety test performance, it supports the case that the driver’s BAC was not over the legal limit while the driver was operating the vehicle.

The Role of Evidence, Witnesses, and Testimony

Winning an acquittal with a rising blood alcohol defense sometimes requires the testimony of a qualified expert witness. Your Los Angeles DUI lawyer will work to establish a detailed timeline of the entire incident, which may involve:

  1. Witness testimony: Your Los Angeles DUI attorney may call witnesses, such as friends or bartenders, to provide a timeline of when and what you were drinking.
  2. Receipts and records: Credit card receipts, bank statements, or other records from the establishment where the alcohol was consumed can help corroborate the timeline.
  3. Expert witness testimony: A forensic toxicologist can work backward from the tested BAC to estimate the blood alcohol concentration level at the time of driving. Expert testimony provides a scientific basis to rebut the prosecution’s presumption.

A skilled toxicologist can also explain why the prosecution’s attempts at extrapolation may be flawed due to reliance on unproven assumptions and averages.

How is DUI Penalized in This State?

Adults in California who receive a first driving under the influence conviction may expect the following penalties:

  1. up to 6 months in jail, a fine of $390 to $1000, and a 3-to-5-year probation term
  2. mandatory completion of an alcohol treatment program
  3. an automatic six-month license suspension under Vehicle Code 13352 
  4. court-ordered installation of an IID (ignition interlock device) in the offender’s vehicle

A DUI conviction also entails extra-legal consequences. Your automobile insurance rates will increase. If your job requires you to drive, you may need to find alternative employment, which can be challenging with a recent criminal conviction.

Let the Miranda Rights Law Firm Handle Your DUI Defense

When someone faces a driving under the influence charge in Los Angeles County, that person needs a DUI defense attorney with substantial experience and a proven commitment to protecting a client’s rights. That attorney is Douglas Miranda at the Miranda Rights Law Firm.

Los Angeles DUI lawyer Douglas Miranda believes the justice system must respect and honor the rights of every criminal defendant. For 24 years, the Miranda Rights Law Firm has successfully represented thousands of clients across Southern California.

Now or in the future, if you are facing a driving under the influence charge, promptly call the Miranda Rights Law Firm in Los Angeles at 213-255-5838 to schedule a free, in-depth case evaluation with no obligation. Se Habla español.