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Loudoun County Attorneys > Blog > Criminal Defense > Rising Blood Alcohol Content Defense to DUI

Rising Blood Alcohol Content Defense to DUI


The Commonwealth of Virginia, like all other states, has a legal blood (or breath) alcohol content (BAC) limit of .08 for drivers. If you are found to be driving over the limit or your driving is impaired, no matter your BAC, you can be charged with driving under the influence (DUI). DUI is a serious crime with harsh penalties, but just because you are charged with DUI does not mean that you will be found guilty. There are many defenses to DUI, some of which relate to BAC. A common defense is the rising BAC defense.

BAC Basics

In order to understand the rising BAC defense, it is important to first understand some of the basic facts about BAC. Generally, the rule of thumb is that people metabolize one drink per hour and each drink that has not yet been metabolized adds a BAC of .02. A “drink” in this case means a 12 ounce regular beer, a five ounce glass of wine, and a one and a half ounce shot of hard liquor. However, there are many factors that will affect a person’s BAC.

One of the biggest factors that will influence an individual’s BAC level is weight. The larger someone is the less effect each drink will have on BAC, generally (although this is not always the case). Gender can also affect BAC with women typically having a higher BAC after fewer drinks than men. BAC is also affected by medications, the strength of the drinks, how fast a person metabolizes alcohol, and other factors. The fact that alcohol takes some time to be absorbed into the system is the crux of the rising BAC defense.

Rising BAC Defense

Typically, if someone is pulled over while driving and the police suspect that the person may be under the influence of drugs and alcohol, they will perform a BAC test using a breathalyzer or blood test. However, between the time that someone is first pulled over until the time that the test is performed, more alcohol may be continuing to be absorbed into the bloodstream. The rising BAC defense argues that at the time the person was driving, his or her BAC was under the legal limit, even though at the time of the test the BAC was above the limit. The underlying concept is that the body will continue to absorb alcohol during the waiting period thereby raising the BAC to above the limit. However, the time that is relevant is while someone was driving, so if the prosecution cannot prove a BAC of over .08 at the time the defendant was driving, the charges should be dismissed.

Our Leesburg, Virginia DUI Defense Attorneys Can Help You

If you are charged with a DUI in Loudoun County, it is important to contact a knowledgeable defense attorney as soon as possible to help defend you from the charges using a rising BAC defense or another applicable defense. Our experienced DUI defense attorneys at Simms Showers, LLP in Leesburg, Virginia can find the best defense against your DUI depending on the circumstances.

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