I crashed into a on-ramp sign with no witnesses present. A CHP was cruising by about 10 minutes later and saw the wreckage. I was not pulled over. I blew a BAC of .212 and .206. At the CHP station blood was drawn and results were a BAC of .28. Do I have a case for a rising BAC?
You need to hire a DUI attorney ASAP. Rising blood alcohol is one of many possible defenses to the criminal allegation you face. Much depends on what is in your police report and other facts that we don't have access to on this public forum. You have only 10 days to request a DMV hearing or your license will be suspended. Again, consult an attorney. attorneys, like myself, offer a free initial consultation. Best of luck
The answer is that you have a POTENTIAL defense of rising blood alcohol, however, 10 minutes may not be sufficient time for your blood to rise so fast that 10 minutes earlier you were below .08. You should consult with an attorney ASAP because you may have other, much more potentially successful defenses.
I would recommend that you speak with a DUI attorney in your area about your case in more detail. Your BAC levels do support a rising argument. A lot of variables need to be determined and other potential defenses. Depending on the situation, there may be some ambiguity in the police report as to the actual time of driving or if it can even be established. This, and many other questions can be looked into by a DUI attorney. Also, note that time is of the essence in requesting a DMV hearing (must be done within 10 days of arrest).
The "rising" BA defense may be used to get you below the .20 enhancements. It is not going to get you below the .08 (obviously to high). There appears to be some discrepancies between the PAS and the blood which could help you on the enhancement issues. You need to consult with a lawyer that focuses on DUI/DMV matters. Good luck.
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