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Grand Rapids Rising Blood Alcohol

Michigan’s DUI laws require the prosecutor to prove that you were intoxicated at the time of the driving. One way for the prosecutor to prove intoxication is with the breath or blood test results. This means that if the prosecutor can prove that you had a bodily alcohol level at or above .08 at the time of your operation, then the jury may find you guilty on that basis alone.

But this may not be as easy as it may seem because your breath or blood sample was probably collected an hour or more after you last operated your car. This is an important fact because your bodily alcohol level rarely stays the same over time. It is either increasing or decreasing. If your lawyer can build a defense showing that your bodily alcohol level rose between the time of driving and the time of the test, then you may have a rising blood alcohol defense.

Where This Defense May Be Applicable

An example of a perfect case to raise a rising blood alcohol defense is Lewis v. Shiomoto.[i] Here, the defendant was stopped for speeding and for drifting outside of his lane. The defendant admitted drinking two gin and tonics, and the officer noted a strong odor of alcohol and red watery eyes. The defendant also performed poorly on a series of field sobriety tests. A roadside breath test was administered 25 minutes after police initially pulled defendant over. The result was a. 084. Then, six minutes later, an evidentiary breath was administered, with a result of 0.091. Three minutes later a second evidentiary test yielded a 0.088. A technician drew defendant’s blood an hour and 16 minutes after he was stopped, and forensic analysis of the sample later showed a BAC of 0.094 percent. As a result of having a BAC at or above .08 at the time of driving, the defendant’s license was suspended. The defendant obtained a stay, pending an administrative hearing to challenge the suspension.

At the hearing, the defendant’s expert testified that the BAC at the time he was driving was “no higher than a .07. In reality, he’s probably below that.” The expert explained his reasoning as follows: “[W]e have the PAS results of a .084 and .082. And that’s at 25 and 27 minutes after driving. And then at 33 and 36 minutes after driving, we are at a .091 and a .088. So in approximately ten minutes we’re going up from a .082 to almost .092, almost a .01 increase over that period of time. With that rate of absorption, which would be—since these are both breath results—that’d be consistent with the rate of absorption that’s happening closest to the time of driving. And that means that he would be—and ten minutes earlier he would drop an .01 and then another ten minutes he dropped [an additional] .01. So it’d actually be about a .05 at the time of driving, based on the measured breath results.”

The defendant’s expert also testified to the “widely accepted in the scientific community” theory that when a person is in the absorptive stage breath tests read higher than actual blood-alcohol content. Consequently, the defendant’s early BAC test results of 0.084 and 0.082 meant his BAC at the time of driving was likely below 0.08 percent. The expert testified that [t]he definition of absorption is that the alcohol level is increasing as time goes on. We have the first breath result of an .082 and an .084. It goes up—it increases to a .088 and a .091. It then increases to a .094 blood. So the level is increasing as time goes on. Measured results define absorption because the alcohol level is getting higher as time goes on.” Ultimately, the appeal’s court found that “substantial evidence supports the trial court’s conclusion Lewis rebutted the statutory presumption.”

Contacting a DUI Lawyer

If you’ve been arrested for drunk driving in Michigan and think you may have a rising blood alcohol defense, then call the Barone Defense Firm for a free case evaluation. We will review your facts and let you know if we think we can raise this defense successfully on your behalf.

For more information on this defense, please refer to Defending Drinking Drivers, a James Publishing publication.

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