The “rising” defense is commonly used by DUI Attorneys in Orange County when a client has a relatively low blood-alcohol level and the client’s drinking pattern is appropriate for the defense. As the name implies, a rising defense is an assertion that the blood alcohol level of person arrested for DUI was actually below a 0.08 percent at the time of driving but because the blood alcohol level was rising during the arrest procedure, by the time the driver took a blood test or breath test the blood alcohol level was at or above the legal limit. The rising defense can be very effective with a jury but almost never prevails at the DMV hearing.
The “drinking pattern” is simply what the driver drank and ate and when this was consumed. So, for example, imagine that a person drank three drinks between 11pm and midnight, finishing the last drink at midnight. The person also snacked on some food during this hour. Then, the person gets in his car at 12:15 and drives home. But before getting home, the driver is stopped for a traffic or equipment violation. When the officer smells an odor of an alcoholic beverage coming from the driver, the officer asks the driver to do some field sobriety tests like the walk-and-turn test, the rhomberg test, and the nose touch test. The driver complies. Then, after a complete DUI investigation, the CHP officer arrests the driver for DUI.
The officer then advises the driver that he must submit to a blood test or breath test under California’s implied consent law. The officer also tells the driver that he does not have the right to have his DUI Lawyer present before he chooses a test. The driver chooses the blood test and the highway patrol officer takes the driver to the station for a blood test. By the time the blood has been drawn from the driver it is 2:00. The blood test result for the driver is 0.09 percent—just barely over the legal limit. Based on this, the District Attorney charges the driver with a DU.
This scenario presents any experienced DUI Lawyer in Orange County with an excellent opportunity to use the rising defense. In this scenario we know that the driver’s blood alcohol level is over the legal limit—but NOT at the time of driving. Rather, he is over the limit while sitting in a police station—which is NOT a crime. The question then becomes “what was the driver’s blood alcohol level AT THE TIME OF DRIVING?” A forensic analyst will show that under these facts, most of the alcohol was actually in the driver’s stomach at the time of driving. The driver’s actual blood alcohol level was actually well below the legal limit. Moreover, because the driver ate food while drinking the absorption of alcohol into his blood will be further slowed down.
The final piece that your Orange County DUI Lawyer will want to present in a rising defense is a sobriety witness. This is somebody who saw the driver near the time of driving and who can testify the driver did NOT appear to be intoxicated—no slurring of the speech, no red eyes, no problems with coordination. Preferably, the sobriety witness will be a neutral person with no affiliation to the driver. Waiters and bar tenders often make good sobriety witnesses. The sobriety witness will confirm your Orange County DUI Attorney’s assertion that you were not impaired at the time of driving.
If you are being charged for a DUI, DUI drugs, OR DUI with injury, call The Law Offices of EJ Stopyro today at (949) 559-5500. You can speak with an experienced DUI Attorney and discuss what will happen in COURT and what your options are. Or visit our website at www.EJEsquire.com.
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