Rising blood alcohol defense is a DUI defense that says that the individual was not under the influence while driving, even if the person was determined drunk when the officer administered a chemical test. The is because it takes time for alcohol to be absorbed into the body. In Virginia, there is no legal definition of rising blood alcohol, which means there is no medically accepted rising blood alcohol argument. There are arguments that can be made, however, they are not uniformly accepted. Fredericksburg DUI defense of rising blood alcohol is on a case-by-case basis and the defense would have to have an expert come in and testify to it. Even then, depending on the judge the expert’s testimony is not always going to be allowed in court. A seasoned DUI lawyer could answer your questions and determine if a rising blood alcohol content defense could be applied to your case.
Any evidence that can be used to prepare a defense involving rising blood alcohol level will require an expert to examine it. The defense will need more than one independent sample of the defendant’s blood alcohol test for the expert to look at. The expert will then tell the lawyer whether they have a defense for rising blood alcohol or not.
An attorney may use Fredericksburg DUI defense of rising blood alcohol in a situation in which a preliminary breath test (PBT) is done at the scene. If the defendant is arrested and the PBT is much lower than it is at the station later on when the official sample is taken, then under Virginia law, the sample at the station is what comes into evidence. The attorney will then want an expert to come in and testify about the results. However, the judge will not rely on the PBT to determine guilt, innocence, or heightened punishment.
Fredericksburg DUI defense of rising blood alcohol is usually not found by judges and jurors to be persuasive. However, it is helpful for the defense to show that the defendant had a drink shortly before the arrest but that it did not affect them until they went to the station and took the official test. In this case, the argument is that the defendant should not be found guilty of a DUI even if the blood alcohol content at the station was higher. Such a defense, however, is only helpful in a specific set of circumstances.
An attorney could help the defendant when it comes to Fredericksburg DUI defense of rising blood alcohol by explaining that at the time the individual was driving that they were not under the influence of alcohol. The defense could then argue that the defendant did not have the alleged blood alcohol level at the time they were driving. This means that the defendant should be found not guilty. If the defense’s case is not strong enough to ask for a not guilty verdict, it may be enough for the court to be more lenient with the defendant.