As one of my clients would tell you, it is not illegal to have a .10 blood alcohol concentration (BAC) 30 minutes after driving. What matters for a DUI is your BAC being below the California limit of .08 at the time of driving.

Here’s how my client, whose blood alcohol level was .10 after driving, was able to avoid a DUI and maintain his driver’s license.

Client Pulled Over for a Suspected DUI

A few months ago, I represented a client who finished his last cocktail at a local bar in Downtown Auburn, California just before driving. Five minutes later, he was pulled over for weaving.

How the Next 30 Minutes Were Spent

He talked to the officers for 10 minutes and then performed 5 separate field sobriety tests for the next 20 minutes.

Afterward, he took a breath test on scene, which showed a blood alcohol level of .10.

Now We Only Know His BAC 30 Minutes After Driving

The result of this test told us his BAC 30 minutes after driving. But what was it at the time of driving?

In a DMV hearing, we were able to show that it was below California’s legal DUI limit of .08 BAC. This is because of a phenomenon known as rising blood alcohol concentration.

What Can Rising Blood Alcohol Concentration Tell Us About His BAC When He Was Driving?

As we ingest alcohol into our bodies, it travels through the esophagus, then to the stomach. While alcohol is in the stomach, it doesn’t impair driving or raise BAC very much because it hasn’t reached the brain.

After it leaves the stomach, it enters the small intestine, then gets absorbed into the bloodstream and travels to the brain where it impairs mental and physical abilities and raises BAC. The time it takes to do this is often 15-60 minutes after ingestion.

What Was His BAC When He Was Driving?

In the case of my client, he was below a .08 BAC (which is not a DUI) at the time of driving because most if not all of the drink he just finished was still in his stomach at the time of driving, which did not raise his BAC or impair him.

However, because he was pulled over, spoke to police, and then completed field sobriety tests, the alcohol had time to leave his stomach, absorb into the bloodstream, travel to the brain, and raise his blood alcohol level to a potential DUI level of .10.

What If He Weren’t Pulled Over?

If he weren’t pulled over, he would have made it to his home near downtown Auburn before he reached a DUI alcohol level of .08.

The Result of His DMV Hearing

Because my client would have made it home before his BAC reached the legal limit for a DUI, the DMV did not suspend his license after we held a hearing.

If you suspect your BAC was rising when you were pulled over, you should consult a DUI lawyer. I, along with the team of DUI lawyers at the Cohen Defense Group are intimately familiar with the science of DUIs, including rising blood alcohol concentration.

Contact our Nevada City, Truckee, Auburn, or Roseville office today.

Cohen Defense Group Gets Results

Felony and Jail Time Avoided

Danielle Keller

My client was charged with a felony DUI involving injury. I collected positive information about my client and advised her to enter outpatient treatment and enroll in a DUI class. Based on my client's efforts to rehabilitate herself, the District Attorney agreed to resolve the case as a misdemeanor with alternative sentencing so she did not have to go to jail.
Avoided Driver’s License Suspension

Zachary Merliss

My client was charged with a misdemeanor DUI. The DMV was going to suspend their driver's license, so we set it for a hearing with a DMV hearing officer. I pointed out to the DMV hearing officer that the police officer did not properly administer the breath tests. The hearing officer did not impose the license suspension, and my client retained his right to drive.
Client’s Positive Progress Earns Dismissal

Danielle Nygren

My teenaged client was facing a DUI charge. He had strong family support and structure and had already made great efforts toward rehabilitation. I filed a motion to dismiss the charge based on his post-arrest efforts and progress. The judge granted my motion and dismissed the case.
Right to Drive Reinstated

Danielle Keller

My client lost his drivers' license for driving under the influence. At a DMV hearing, the hearing officer confirmed a one year license suspension. We appealed that decision based on law enforcement's failure to properly document the breathalyzer testing. We won on appeal and the client's license was reinstated.
DMV Suspension Set Aside

Zachary Merliss

My client’s driver’s license was suspended based on an allegation of driving under the influence. I challenged the suspension at a DMV hearing and won, because the time of driving could not be established. My client’s driving privilege was reinstated.
Jail Time Avoided

Danielle Keller

My client was charged with felony evading the police and driving under the influence. He faced six months in custody. I gathered and provided positive information about my client to the DA. Based on that information, the DA agreed to resolve the case for a misdemeanor with no in-custody time.
No Conviction

Zachary Merliss

At trial, a jury was unable to find my client guilty of DUI. The judge declared a mistrial and the DA did not obtain a conviction.
Case Dismissed

Zachary Merliss

My client was charged with driving under the influence. I investigated and prepared the case for trial. My preparations and communication with the the DA before trial demonstrated that the DA did not have enough evidence to dismiss the case. The charges were dismissed.
Driving Privilege Reinstated

Zachary Merliss

My client's driver's license was suspended for driving under the influence. I contested the suspension at a DMV hearing and called the forensic toxicologist as a witness. After hearing testimony, the hearing officer set aside the suspension and reinstated my client's driving privilege.
Charges Dismissed by District Attorney

Sarah Einhorn

My client was charged with driving on a suspended license and drug possession. He struggled for years with another attorney to demonstrate that he had completed the required DUI school. He did everything he could to preserve his ability to get his license back. When he came to me, he had enrolled in the DUI school and made significant progress, but still had almost a year of time before it would be complete. I spoke with the District Attorney on his behalf and was able to convey to her how much work my client had put into his case. The District Attorney agreed to dismiss the charges.
Marijuana DUI – No Charges Filed

Zachary Merliss

My client was arrested for a DUI based on allegedly having marijuana in his system. I created a packet citing scientific articles that explain how marijuana impairment is not correlated with field sobriety tests or toxicology results. I pointed out that my client did not drive poorly, was only stopped for a fix-it ticket violation, and cooperated with police. After considering all of the information I provided, the District Attorney decided not to file any charges.

Client Pulled Over for a Suspected DUI

How the Next 30 Minutes Were Spent

Now We Only Know His BAC 30 Minutes After Driving

What Can Rising Blood Alcohol Concentration Tell Us About His BAC When He Was Driving?

What Was His BAC When He Was Driving?

What If He Weren’t Pulled Over?

The Result of His DMV Hearing

Cohen Defense Group Gets Results

Felony and Jail Time Avoided

Avoided Driver’s License Suspension

Client’s Positive Progress Earns Dismissal

Right to Drive Reinstated

DMV Suspension Set Aside

Jail Time Avoided

No Conviction

Case Dismissed

Driving Privilege Reinstated

Charges Dismissed by District Attorney

Marijuana DUI – No Charges Filed