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Rising Blood Alcohol in DC DUI Cases

There are some important considerations when it comes to blood alcohol levels in DC DUI cases. There is no legal definition of rising blood alcohol in DC. However, as it is commonly accepted, rising blood alcohol refers to the biological fact that the human body processes alcohol at a certain rate. The rule of thumb is 0.015 percent per hour, but this is a generality.

Every individual has a different metabolism and a different body makeup. Everything is different from person to person and even within a person from day to day or time of day. In DC DUI cases, rising blood alcohol can be important to understand, so it is essential to work with a skilled DUI attorney who can help explain its part in your case.

Chemical Testing

The police officer arrests the person and has them perform a chemical test sometime later. The test does not take place instantly. The person is arrested and taken back to the station to be processed and is then requested by the police officers to perform a chemical test. Most often, the chemical test is a breathalyzer test. The person might give their breath sample an hour to two hours after they were driving.

If they were drinking a large amount of alcohol right before driving, the amount of alcohol in their blood stream will be higher at the point they give the test then it was at the point they were driving. That makes it appear as if they were much more impaired than they actually were at the time of driving.

DC Regulations

Many jurisdictions have it written directly into their law that the chemical test must happen within a set period after the driving, otherwise, the results of the chemical test cannot be introduced into the case because of the phenomenon of the rising blood alcohol in that DUI case in DC. They want to make sure the results of the chemical test are as accurate as possible.

DC law does not have a provision for when the chemical test must occur. The most common is two hours, but DC law has no cutoff. Theoretically, an individual can be arrested for a DUI under suspicion of DUI, taken back to the police station and not given a test for three hours or three and a half hours. It is unusual, but not unheard of.

Testing Process

Rising blood alcohol or rising BAC is an issue in some cases. When a breath test is given, two samples are taken and must be taken at least three minutes apart. When a person drinks alcohol, their blood alcohol content is either rising or falling. When two tests are done, it is possible to determine whether the BAC is rising or falling because one test will be higher than the other.

Alcohol metabolizes in the person’s body at certain rate and may continue to rise after they stop drinking until the BAC begins to go down. It is possible to look back in time to determine whether the person’s BAC is rising or falling.

An hour or more can pass between the traffic stop and when the blood, breath, or urine test is given. The defense attorney can argue that the alcohol level was lower because at the time of arrest, the person’s BAC was rising. Sometimes the defense calls a toxicologist to talk about that and provide analysis of that result based on the BAC and a variety of other factors.

Time of Highest BAC

Toxicologists use a curve to analyze blood alcohol content levels. When a person ingests alcohol, their blood or breath alcohol level rises, hits a peak, and then begins to fall as the alcohol is metabolized.

Many factors can influence the absorption of alcohol into the body including body composition, the amount of alcohol, the amount of food consumed, and body fat content.

Circumstances of Defense

To prepare a defense of rising blood alcohol in DC DUI cases, the attorney must know as accurately as possible what the individual had to drink and when they drank it. Those two facts are compared to when the client was driving in relation to what they had to drink and when; and finally, when the test was given. There is other evidence with regard to a person’s metabolism, any other health issues, and any other factors that might influence the absorption rate of alcohol in their system. For a defense involving rising blood-alcohol, the DC DUI attorney must know exactly what they had to drink, when they drank it, how that relates to the time they were driving, and the time they had the chemical test.

Rising blood alcohol could be the circumstance where the drinking happened in a short amount of time prior to driving and the chemical test was not done immediately or very shortly after the driving ceased. The argument can be made that any test that was done later is not an accurate reflection of their level of possible impairment at the time they were in control of a vehicle.


A defense can be raised that the breath alcohol content at the time of the test does not accurately reflect the breath alcohol content at the time of driving because it is rising. The person’s BAC was under the legal limit at the time that they were driving.

Depending on the facts of a particular case, a compelling piece of evidence regarding rising blood alcohol level is when a toxicology expert testifies and a judge or a jury finds that testimony credible.

Defense lawyers cross examine a police officer to the extent that the police officer knows about this issue. However, the defense attorney can have their own toxicology expert talk about rising blood alcohol.


Most adults have some experience with consuming alcohol and understand that someone can have three shots of whiskey and two minutes later they are not drunk, they are fine. There is a lag between when the alcohol is consumed and when the alcohol is absorbed into a person’s system and affects them.

It is reasonable to assume that most adults have personal experience with the lag or have seen it affecting other people. Most people have some familiarity with the consumption of alcohol and its effects. It is a common experience and that personal experience resonates with the judge or a juror.

Working with an Attorney

A person, most often in a DUI case, has no or limited criminal history. They have no experience or any prior knowledge about how best to present specific defenses in a criminal case and specifically a DUI criminal case. An experienced DC DUI defense lawyer knows what facts and issues are key to presenting a rising blood alcohol defense or any defense in a DC DUI case. They know based on experience and training what works, what is important, and what facts are crucial to a successful defense.

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