3. Rising Blood Alcohol
If your body is still absorbing alcohol at the time that the blood alcohol testing is administered to you by Sonoma County law enforcement, then the later test results in Santa Rosa will not be an accurate reflection of your alcohol level at the time of driving. This defense usually arises when you drank alcohol just prior to driving.
A Rising Blood Alcohol Example.
Your attorney should explain a rising blood alcohol case to you this way:
Let's say you live in Cloverdale and you arrive at a party in Petaluma at 10:00 p.m. You have had nothing to drink and you have no alcohol in your body. Minutes after arriving you drink three healthy shots of tequila on a dare. Right then you see your ex at the party and decide to go home. At 10:05 p.m. you leave and drive Highway 101 North from Petaluma to Cloverdale. As time progresses during your driving, your blood alcohol concentration ("BAC") will be rising. For example, when you reach Santa Rosa, your BAC may be .04%, still below the .08% legal limit. However, by the time you reach Healdsburg, your BAC may be at .09%, and by the time you reach home, your BAC may have reached close to twice the legal limit at .15%.
But what if you are stopped by CHP in Windsor? Let's say that your BAC at the time of that stop is .06%. But your alcohol absorption doesn't stop just because your vehicle stopped. By the time you take a breath test, typically 15-25 minutes after the police stopped you, your BAC has risen to .13%. Click here to see Scientific Examples Of Rising Curves.
The Defense.
The law allows the Sonoma County prosecutor a legal presumption, to argue to the jury in a Santa Rosa courtroom that the .13% result is presumed to be your BAC at the time of your driving (because obviously the police can never test you at the time you are actually driving). This presumption is discussed in further detail in Tip #7 below. But if we can show by affirmative evidence that it is more likely your BAC was below .08% at the time you were observed driving (which is the only legally relevant time -- it is not illegal to be over .08 while stopped at the side of the road) then your DUI lawyer may win your case in Sonoma County court and at Santa Rosa DMV.
This defense is strongest when your test results show low blood alcohol levels and if you offered a credible drinking history at the time you were interviewed by the Sonoma County police prior to arrest. If you took a preliminary breath test prior to arrest that actually shows you were below .08% with later tests showing modest gains, then you may have a very strong defense.
On the other hand, if you lied when interviewed at the scene (most people do), and said you had nothing to drink all night, or "just one drink hours ago," then your Sonoma County DUI lawyer may have difficulty convincing a Santa Rosa jury or the DMV that you are telling the truth later when you testify differently than the police report account by Sonoma County law enforcement. This is why Sonoma DUI lawyers nearly always suggest that during an encounter with Sonoma County law enforcement, it is best to say nothing at all about your activities, but don't lie.
Click here to see an example of a winning DMV Case Applying Rising Defense.