An Unconventional Argument
It might seem counter-intuitive, but sometimes DUI defense lawyers will readily admit that their client had been consuming alcohol prior to driving. But they will also be quick to tell you that it was the “one for the road” that unfairly skewed the Intoxilyzer test results. This is possible because alcohol is not absorbed into the body instantaneously. Instead, when a person drinks an alcoholic beverage, it takes between 45 minutes and 3 hours for alcohol to be absorbed into the bloodstream. It is important to note that the impairing effects of alcohol do not take place in the human body until the substance actually reaches the bloodstream. Thus, the argument goes that had the driver not been stopped and detained by law enforcement, he would have avoided impairment until sometime after safely reaching his destination.
Doing the Math
The amount of time that it takes for a person to feel the effect of an alcoholic beverage varies greatly defending on factors such as sex, weight, the alcohol concentration of the beverage and other stomach contents. Because it can take hours for alcohol to be fully absorbed into the bloodstream, it is possible for some individuals to have several drinks and nonetheless remain under the legal limit for some time. However, the time of drinking and duration over which the alcoholic beverages were consumed is critical to this analysis. Computer software was created that can accurately take all of these characteristics into consideration when ascertaining a blood alcohol level at the time of driving. Such calculations include “retrograde extrapolation” which entails a formula designed to focus on the blood alcohol level at the time of driving, instead of the time of Intoxilyzer testing. Why is this important? Because it is illegal to be a .08 BAC at the time you are seated behind the wheel, not at the time you are ushered into the police department Intoxilyzer room.
The Rising Blood Alcohol Defense
An individual who has “one for the road” immediately before getting behind the wheel may not necessarily be driving under the influence, unless his travel plans are extensive. If the driver were to be pulled over before the alcohol in their stomach had been fully absorbed into their bloodstream, they would not have committed a crime recognizable under Florida's DUI law. The defense attorney will argue that “by the time law enforcement administered a breath test in his client’s case, enough time may have elapsed for additional alcohol to migrate into the driver’s blood stream. Thus, if a DUI suspect’s blood alcohol content rises above the legal limit of .08 after the time of their motor vehicle stop, but before their submission of a breath sample, they may benefit from a “rising blood alcohol defense.”
Mobile Breath Testing
Law enforcement efforts at combating the “rising blood alcohol defense” are often aimed at using mobile breath testing vehicles which hurry to the scene of the traffic stop. Getting the breath sample as close in proximity to the driving time is the key. By eliminating the time it takes to transport the DUI suspect to the police department or jail, law enforcement is effectively preventing defense lawyers from considering the “rising blood alcohol defense.”
A Possible Defense in Your DUI Case?
The attorneys at Russo & Russo are certified Intoxilyzer operators who understand the legal and scientific intricacies of the “rising blood alcohol defense.” As former State prosecutors and with over 33 years combined experience in DUI defense, they have reviewed thousands of driving under the influence cases and worked closely with expert witnesses on numerous occasions to build defenses. Let us evaluate your DUI case, examine the field sobriety tests, and discuss possible defenses and strategies with you.
If you have been charged with a DUI, we can help.
Call our office for a free consultation at (727) 578-0303.
Visit our extensive St. Petersburg / Clearwater DUI defense website at: www.duistpetersburglawyer.com
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