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How can rising blood alcohol help an OVI case?

If law enforcement officers charge you with OVI, one of your possible defenses could be rising blood alcohol. At first glance, it seems to perhaps not be an effective approach, but it has helped in many cases.

The concept of rising blood alcohol is this: A BAC level does not happen all at once. For example, if your BAC is 0.07, it likely did not leap from 0 to 0.07. Rather, it rose in steady and small amounts. It is your BAC at the time you were driving rather than your BAC at the time of a test that matters.


Suppose the police pull you over and have you go through field sobriety tests. Thirty minutes after the pull-over, they charge you, take you to the police station and put you in a jail cell. Two hours after your pullover, you finally get an official test, and your BAC is 0.10. Does that mean you were officially above the 0.08 limit while you were driving? Because of rising blood alcohol, it is entirely probable you were under the legal limit when you were on the road. This is especially true if you began driving right after finishing your drink. Ironically, waiting an hour or two to sober up before beginning to drive could actually render you more intoxicated while driving than if you had not waited. 

Rising blood alcohol can be even more of a factor in your defense if you had a lot of food in your stomach. Food prevents alcohol from breaking down as quickly as it would have otherwise.

The science

For the most part, your stomach first digests the alcohol, and then your small intestine processes it. Then your bloodstream absorbs it, creating a "buzzed" feeling. It stays in your blood until your liver can break it down, and that can be quite the process. It is why you might go to bed and still wake up with a buzzed feeling.

Specific circumstances

As with most anything, the details can make a difference. A rising blood alcohol defense may be more effective if you were driving home only, say, five minutes away. Likewise if your speech appeared clear and your driving was fine. 


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