Many drivers assume that a failed breath test or blood alcohol test automatically results in a DUI conviction. Although a failed blood alcohol test is significant, it is not infallible. Depending on when you take the test in comparison to the time of your last drink, you might find that the test is not as accurate as it could be.
The rising blood alcohol phenomenon may be to blame for your results.
How your blood alcohol level develops
When you consume alcohol, it does not immediately affect your blood alcohol levels. Like food, it takes time for the alcohol to digest and reach your bloodstream. Any delay from the time you stop drinking to the time of the test could result in an increase in your blood alcohol levels. The same applies to any delay from the time of the traffic stop and the time that you take the blood alcohol test.
When the rising blood alcohol defense may apply
If your blood alcohol test indicates a level just above the legal limit, such as 0.09, any delay between the traffic stop and the time of your breath test could be material. If the officer took 20 minutes to conduct the field test before the breath test, your blood alcohol level may have been under the legal limit at the time when the officer stopped you.
Timing is important when you consider the results of your breath test. You may be able to fight the charges with a rising blood alcohol defense.