The issue of blood alcohol level at the time of driving can often be affected by situations in which a person is tested when their blood alcohol level is still rising. A person‘s blood alcohol level can be below the limit at the legally important time of driving, but have risen to a level above the limit by the time that they are tested. This is particularly important where a person‘s tested blood alcohol level is close to the legal limit, up to .12% or more.
This scenario usually occurs when the drinking ends at a point close in time to the contact with the police, such as where a person has just left the bar or other place where they were drinking. If a person "chugs" a drink just before leaving, it impacts the test even more. This can happen in many cases, as people tend to "chug" or down the last part of a drink just before leaving, particularly if it is at closing time for a bar or restaurant. That person‘s blood alcohol level may continue to rise for well over an hour. It is likely that if the person is stopped for a traffic violation and DUI investigation, it will occur quickly after drinking, while the driver is on their way home.
Unfortunately, police officers may incorrectly document the drinking history reported by a driver, particularly when the officer is inexperienced, distracted or in a hurry. In addition, it has been my experience that many drivers incorrectly report their drinking history. Drivers who are afraid of being arrested often underreport their drinking and state that it has been several hours since their last drink. This makes it appear that a rising blood alcohol scenario is not involved, when the truth would in fact help their defense.
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