No Preliminary Breath Test, No Field Sobriety Tests. Officer asked about drinking and said a beer. no times of start or stop or any other drinking pattern details. Breath of 0.12.
Had large beer import and dble shot 80proof just before leaving friends house and got pulled over 10 minutes later. Have witnesses and receipt from convenience store.
I realize that 0.12 is not borderline but, doesnt weight play a big factor in calculating bac?
Will my comment about a beer come back to haunt me and negate the rising curve defense?
What other factors have to be present to make it a strong defense?
Do juries believe in it?
A rising blood alcohol defense will work if presented properly with a good attorney and a good expert witness. It would depend on the amount of time that passed between you getting pulled over and you taking the breath test. You could have been under .08 at the time of driving and then while you were getting arrested the alcohol in your stomach absorbed into your blood. The fact that you lied to the cop about what you had to drink will be used against you, but most juries understand that most people who are borderline will lie to the cops about what they drank. So that is not fatal. You have a good defense, especially if backed up by witnesses and a good expert. Good luck to you.
Agree with the above answer. It'll depend what's in the report (or more accurately, how the officer will testify about you), the driving pattern, and whether there are the stock objective signs or investigative clues (fumbled license, etc.). Just hung a jury on a .11 rising defense last week (although certainly no lawyer can guarantee any outcome), so the rising defense can work if presented properly. Takes an attorney who knows what the DA's toxicologist is going to say, and how to counter with accurate, researched, published science.
Disclaimer: This was not legal advice, and in no way formed an attorney-client relationship.
I agree with the other attorneys. Additionally, one other factor that affects a rising blood alcohol is the amount of food you have eaten. Other factors may affect absorption as well or even affect the breath test results (so examine all options). Basically food in the stomach will slow down the absorption of alcohol. So the more food that is in your stomach will mean that your body will take longer to absorb alcohol. This absorption phase makes up part of the time period when your blood alcohol is rising.
The jury will likely focus on the details observed by the officer, e.g. bad/good driving, symptoms of intoxication (balance problems or slurred speech or the absence of these problems). The jury will also focus on whether or not they believe your drinking pattern. Details become very important.
You will need an attorney and likely an expert to fight this case effectively.
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