The rising BAC defense is one possible defense in a Texas driving while intoxicated (DWI) case. In some circumstances, we can use this defense to challenge the blood alcohol testing results in a drunk driving arrest.
Under this defense, we argue that our client was not intoxicated while behind the wheel. Instead, their BAC continued to rise between the traffic stop and the administration of the test. During this delay, it reached the legal limit. In effect, we argue that your BAC was still rising at the time of your stop.
Understanding the Rising BAC Defense
Because of the strict protocols the police must follow when obtaining a blood or breath sample in a Texas DWI case, there is always some delay between the traffic stop and the time of the specimen is collected. It is this delay that allows the rising up blood alcohol defense to work for some defendants, and will enable them to beat the DWI charges against them.
It takes time for the alcohol you drink to be processed by your body and enter your bloodstream. Because of this, you will have a higher BAC 45 minutes after you have a drink than five minutes after.
If you get in your car immediately following a drink, you may be under the legal limit. However, you could hit the legal limit while driving — or after police detain or arrest you.
How Is Rising BAC a Defense Against DWI?
In Texas, the legal limit for most adults over the legal drinking age of 21 is a BAC of 0.08 percent or above. The police obtain a BAC reading to confirm a driver’s BAC either through breath testing or blood testing. In some cases, a person may undergo both types of testing.
However, there can be a significant delay between the initial traffic stop and the time they conduct this testing. This means that if you barely had a BAC over the legal limit following testing, you were likely below the legal limit while driving. Under Texas law, it is not illegal to drive with a BAC of 0.079 percent or below.
Building a Defense Based on Rising BAC
Not every case is appropriate for a rising blood alcohol content defense. In general, this may be a possible defense in your case if:
You Were Close to the Legal Limit
While your BAC will continue to rise after drinking, it will not drastically increase. If you tested far above the legal limit, you were likely already above 0.08 percent BAC when the police stopped you. For that reason, rising BAC defenses are typically only effective in cases when the defendant tested very close to the legal limit. You have a much greater likelihood of this defense being successful if you had a 0.08 percent BAC than if you had 0.15 percent BAC.
There Was a Delay in Blood Alcohol Testing
The delay between your stop and testing for BAC is one of the most important aspects of this type of defense. If there were not a significant delay, there would not be time for your BAC to rise from below the legal limit to above it. If the police conducted a roadside breath test or if they drew blood within a few minutes of your stop, it may be difficult to use this defense successfully.
There Were No Aggravating Circumstances or Signs of Intoxication
If there were observable signs of intoxication or aggravating circumstances such as an accident, this defense is much less likely to be effective in your case. The district attorney can use the police testimony about your swerving, videos where you slurred speech, and other evidence to claim you were intoxicated behind the wheel even if they cannot prove your BAC at the time of your arrest.
If we believe the rising BAC defense is a good option in your case, we can build a case to argue you were not over the legal limit while driving. We may be able to hire expert witnesses to discuss toxicology and call in eyewitnesses who saw you exhibit sober and responsible behaviors behind the wheel.
Talk to a DWI Defense Attorney in Texas About Your Case
At Eddington Worley Attorneys, our Texas DWI Defense team can build a strong strategy based on rising blood alcohol if that is the best fit for your case. We evaluate and investigate every case we handle. Then we use the facts we uncover to develop a defense strategy and fight for a more favorable outcome.
Call us today at 855-600-6695 to learn more or let us go to work fighting to protect your rights immediately.
