A defense that is commonly used at trial is the “Rising Alcohol Defense.” In short, this defense argues that the breath/blood tests administered during the DUI investigation don’t accurately represent the BAC because of the time in between driving and the administration of the tests. Depending on the drinking pattern, one’s blood alcohol level could have rose from below at .08 to at or above .08 between the time of driving and the time the tests were administered.
When you step back and think about it, this defense makes a lot of sense. Just like cold medicine doesn’t take effect the second you ingest it, alcohol doesn’t absorb automatically. That being said, this defense can be a tough pill for jurors to swallow, as it is commonly an admission that the BAC was at or above .08 when the tests were administered. It is up to the defense attorney to drive home the point that the relevant time to consider is the time of driving, not the time the tests were administered.