There are many ways to fight a drunk driving accusation and the right defense depends on your specific situation. You might challenge the results of a chemical test, you might argue that you were illegally stopped, you may say there was an emergency that necessitated your driving while drunk, or even that while you were in the vehicle, you were not actually driving while drunk. One popular defense in cases where the driver has admitted to drinking enough to put him over the limit is that the alcohol did not have enough time to affect his driving yet. This is known as the rising alcohol defense.
Defining the Rising Alcohol Defense
Just about everyone would eventually be over the legal limit to drive after taking 5 shots of vodka at once. But the reality is that it will take anywhere from 20 to 90 minutes for the alcohol to affect you.
Since you are only guilty of drunk driving if you are over the legal limit or under the influence while behind the wheel, the rising blood alcohol defense argues that while you drank, you were not yet over the legal limit or under the influence while driving. Under this defense, you are actually arguing that when you were pulled over, the amount of alcohol in your blood was lower than what it was when you were tested. For this reason, this defense will not work if you took a breathalyzer on the spot when you were pulled over unless that test is lower than the later tests. For most people, the initial Preliminary Alcohol Test (PAS) is higher than the later breath or blood so this defeats most rising blood alcohol claims. On the other hand, if the PAS result is lower, than it shows the blood alcohol was rising during the time of the test. For people well over the limit, the defense can also work to lower the amount of alcohol to get the basic and not enhanced penalties for having a high blood alcohol level.
If an officer sees you leave a bar or party and then pulls you over and you fail a breathalyzer test, the rising alcohol defense may benefit you. It can also be effective if you confessed to drinking before driving, as long as you did not admit that you were drinking long before getting behind the wheel.
Protect Your Rights
Like many other defenses to drunk driving, this strategy will only work in limited circumstances and what you say to the police could be used as evidence that could negate your defense. That is why it is so important to refuse to answer any questions without your DUI attorney present. If you do speak to the police during a DUI arrest though, it is critical you write down every detail you can remember after you are released because any small detail may help you build a successful defense.
You should also never attempt to use this defense without first speaking to your lawyer as it can only be used in very select circumstances. Attempting to defend yourself this way without talking to your attorney can actually hurt your case rather than help it.
If you have been accused of drunk driving, speak with a top DUI lawyer as soon as possible after you have been pulled over. You can schedule a free initial consultation with Peter M. Liss by calling (760) 643-4050 or (858) 486-3024.
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