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 The defense of Rising Blood Alcohol is a way to challenge the results of a breath or blood test by showing the results are not reflective of the person true BAC at the time of driving.  You see, in California the law prohibits driving when your blood alcohol level is at or above .08.  If the facts show the individual was in the absorptive state of alcohol metabolism when he was stopped it can be argued his or her BAC at the time of the test was higher then when they were actually driving.  

The defense is only viable when the evidence shows they had recent drinking, close in time to the stop.  If the last drink or drinks were consumed within 1-2 hours (longer in cases where some prescription drugs are being taken) of the time of the stop they may still have raw alcohol in their stomach which hasn’t been absorbed in the blood stream and therefore is not a “blood alcohol concentration”.  

The science on the subject is quite clear: The absorption of alcohol is a complex dynamic process that begins as soon as drinking begins. Alcohol is primarily absorbed into the bloodstream through the small intestine, but some absorption occurs in the stomach and mouth. Absorption rates are highly variable and are not linear. Factors such as the presence of food in the stomach, the type and volume of beverage consumed, other drugs consumed, and the condition of the gastrointestinal tract, can impact absorption rates. Studies support that it can take up to 2 hours or longer to reach the post absorptive phase after the last drink The time needed to reach the peak alcohol concentration is not the same as the time to reach the post absorptive phase.

What this means is that if you are arrested and charged with driving under the influence and you took a breath or blood test that resulted in a BAC determination that you were above the legal limit, that determination could be subject to challenge if your last drink or drinks were within 2 hours of the chemical test, or longer in some cases where the person is taking certain medications.  For example, if you are taking Ozempic or similar drugs absorption times can be increased.  Read Matthew’s post about how Drugs like Ozempic may lead to false BAC results in DUI cases.