The rising blood alcohol defense argues that your blood alcohol level was still climbing when you were tested, so the number on the report was higher than your actual level while you were driving. In California, what matters is your BAC at the time you were behind the wheel, not an hour later at the station.
Alcohol takes time to absorb. After your last drink, your BAC keeps rising for a while, often 30 minutes to a couple of hours, before it peaks and starts to fall. There is almost always a gap between the traffic stop and the breath or blood test. If you were still absorbing during that gap, your BAC at the moment of driving could have been under 0.08 even though the test came back over the limit.
This defense fits certain fact patterns better than others. It tends to be strongest when you had your last drink shortly before driving, the drive was short, and the test happened well after the stop. Timing details matter, so what you ate, when you drank, and how much time passed all feed into it.
Proving it usually involves a forensic toxicologist who can work backward from the test result. It is a technical argument, not a magic word, and it will not fit every case.
Joe Crudo looks at the timeline in every DUI to see whether this applies. Learn more about BAC defense or common DUI defenses.
This is general information, not legal advice, and every case is different. Call Crudo Law at (858) 622-7280 or visit /contact for a free, confidential consultation.