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Virginia DUI Rising Blood Alcohol Defense

Rising blood alcohol refers to the idea that a person’s blood alcohol at the time that they are tested at the police station may not necessarily be the same blood alcohol that they have when they were operating a motor vehicle. For example, if a person has recently had something to drink at the time that they are stopped and there is still alcohol in their stomach, which is being absorbed by their body, then the blood alcohol that they have in the vehicle may actually be lower than what they have at the station once there has been an opportunity for more of that to be absorbed.

This can be utilized as a defense in circumstances where the defense can prove or provide evidence that tends to show that the blood alcohol at the time of the actual operation of the motor vehicle was lower than the blood alcohol result obtained by the government. In some cases, that may mean that a person has the blood alcohol reduced to a level where a mandatory minimum penalty will not be imposed. In other cases, it may reduce it far enough that they are not actually over the legal limit and their case may be dismissed. A qualified Virginia DUI attorney can offer more insight into the subject.

Highest Point of Blood Alcohol Level

A person’s blood alcohol level will be at its highest sometime after they have stopped consuming alcohol depending on how much they have had and depending on how long ago it was. How much they have had to eat, their gender, and their body weight can all be factors in determining when the blood alcohol will hit its peak level. In order to understand when that might have been, it is important to utilize an experienced attorney and in many cases have the benefit of the assistance of an expert to witness in the form of a toxicologist. This can help greatly in a Virginia DUI defense in regards to rising blood alcohol.


A rising blood alcohol level defense in Virginia for a DUI, in virtually every case, is going to involve the assistance of an expert witness. That expert witness is going to render an opinion about what the blood alcohol of the accused was at the time of driving. In order to form that opinion, they will be looking at the height, weight, and gender of the accused, what they had to drink, how much they had to drink and then at what time. From there, an attorney will extrapolate what the blood alcohol was.

Circumstances of Rising Blood Alcohol as Defense

In most Virginia DUI cases, there are actually two different points in which the accused’s rising blood alcohol is tested. The first one is a preliminary breath test, which is offered during the stop. The second one is the test that is offered at the police station subsequently. In any case where the initial test at the side of the road is lower than the test performed at the police station, there is potentially a rising blood alcohol event available in the case.

Persuasive of Defenses

The essence of a DUI is that a person is operating a motor vehicle at the same time that they are under the influence. While that may sound simple, the test that is administered by the government is not administered at the time that the person is operating the motor vehicle. While it may be true that the test shows that at some point the person was intoxicated, it does not necessarily prove that they were intoxicated or under the influence at the time that they were operating the motor vehicle. A Virginia rising blood alcohol defense can be persuasive because it shows that an individual’s blood alcohol was actually lower at the time of driving than it was at the time that the test was actually done.

How Virginia Lawyers Can Help

A DUI lawyer can help the accused in asserting a rising blood alcohol defense whenever it presents itself by creating reasonable doubt as to whether the person who is accused was actually intoxicated at the time that they were operating their motor vehicle or whether that intoxication happened later as a result of their body absorbing alcohol that was still in their stomach at the time of the stop.

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