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Top Things to Know About the “Rising BAC” Defense

Depending on the individual, their body weight, and their metabolism, it can take anywhere between 30 minutes to 3 hours for the alcohol they consume to be fully absorbed into their body. Moreover, it can take up to an hour or more for a person to be given a breath or chemical BAC test after they have been pulled over for suspicion of DUI. This means that it is possible, for example, for someone to have a BAC of just 0.05 while driving but for the breath test to show a BAC of 0.09 an hour later when it is administered. As a result, it would mean that although the individual failed the breath test, they were perfectly legal to drive. This defense is called the “rising BAC” defense.

How Common is it for Time to Elapse Before Being Given a BAC Test?

It’s actually very common for about an hour to pass after being pulled over before the BAC test is administered. If a test is not administered until after the arrest at the police station, then the time elapsed would be even longer. What this means is that the breath or chemical test results could differ significantly from the time you were driving to the time the test was given. The only reasonable conclusion is that what the BAC tests show when they are given and what your BAC was when you were driving can be two very different things.

When is it a Good Defense?

The rising BAC defense is almost always a good defense. However, there are some situations in which it can be an excellent defense. For example, if the individual was pulled over at a time which was close to when they stopped drinking, it is much more likely that they were below the legal limit while driving but above it when given the test. This would be because the alcohol had not yet been fully absorbed into their body when driving.

The good news is that your BAC level after being pulled over isn’t what matters. It’s your BAC level while you were driving that is relevant. Prosecutors must show beyond reasonable a doubt that you were above the legal limit while you were driving; not after.

For more DUI defenses, or to get a free consultation with an experienced Washington DUI attorney, call us today.

Call today — (253) 312-6122 — your future may depend on it.

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Murphy’s Law Offices
506 S. 11th St.
Tacoma, WA 98402
Phone: (253) 312-6122

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