Rising Blood Alcohol in Virginia DUI Cases 

Alcohol content is not static within one’s body. A person’s body both absorbs and metabolizes alcohol at a unique rate. If a person takes a shot of whiskey and tests oneself 30 seconds later, that person’s blood is not going to have any alcohol in it, because none of the alcohol was absorbed into that person’s system yet. As it starts to absorb, that person’s blood alcohol content will slowly start to rise. As their body metabolizes that alcohol, the alcohol content will start to go down. Rising blood alcohol is the concept where there is alcohol in one’s body that has not yet been absorbed.

While rising blood alcohol in Virginia DUI cases is no longer considered enough of a defense, it can still serve as a mitigating circumstance in a DUI case. If you have been charged with a DUI, and you want to know more about rising blood alcohol levels in Virginia, get in touch with a determined DUI attorney that can advocate for you.

When Will Someone’s BAC Be At Its Highest?

Generally, it takes it about 90 minutes for someone’s blood alcohol level to rise to its highest point, but everybody is different. As a general rule, if a person drinks a lot of alcohol now, the alcohol will be at its peak in a person’s blood between an hour and two hours later. However, every person’s body is different with how they absorb alcohol and with how they metabolize alcohol, meaning that that equilibrium is different for everyone as well.

For example, an individual who had stomach reduction surgery was told by doctors that they would absorb alcohol at a much higher rate than most other folks, which means they have to be extraordinarily careful when consuming alcohol. There are a lot of variables having to do with someone’s body chemistry that can alter that equation, but it is safe to say that the person drinking’s BAC is going to peak roughly 90 minutes after consumption.

Instrumental Evidence to a Rising BAC Defense

Evidence of rising blood alcohol in Virginia DUI cases is not as useful as many would think. Some 20 years ago, attorneys used to use that defense a lot. They were called loading those defenses. What it meant is, if a person were to go to a bar and drink a couple of drinks or shots before they hit the road, and were to get pulled over right away, cops are going to smell the alcohol and think that they are drunk because they still have the alcohol on their breath.

By the time they get arrested and taken to the jail, roughly an hour to an hour and a half might have passed. Now the person is blowing into that machine when the alcohol is at its highest. Attorneys would argue that the blood alcohol content at the time that the person was driving was much less. The Court of Appeals has decided that the way the statutes are written means that the government must only prove that the person’s alcohol content was high at the time they are tested and not at the time that they are driving. This puts a chilling effect on a lot of the retroactive blood alcohol defenses.

Jurors, however, might find rising blood alcohol defenses in Virginia DUI cases persuasive because it makes common sense. Judges are generally not persuaded. It is not because judges do not have common sense, but because Virginia law clearly states that the issue at hand at a trial is what the person’s alcohol content was at the time they were tested and not at the time they are driving.

Seeking the Guidance of an Attorney

Despite it no longer being a common defense, a skilled lawyer can use rising blood alcohol in Virginia DUI cases when trying to mitigate a person’s exposure when it comes to negotiating the outcome of the case or the prosecutor. If the defense attorney has compelling evidence that your BAC was on the rise and was much lower at the time that you were driving, your lawyer can attempt to use that information in negotiating with the government to try to procure a softer landing for you, assuming the government can otherwise prove their case.