It’s what every motorist dreads – looking in the rearview mirror and seeing the flashing red and blue lights that indicate you are being pulled over. On an average day, those lights will result in lost time and a costly ticket. If, however, you had a drink – or two – before getting behind the wheel, those flashing lights could result in a trip to jail and a costly driving under the influence, or DUI, prosecution. If you find yourself in just this predicament, do not make the mistake that many people make of assuming a conviction is a foregone conclusion based solely on the fact that you failed the breath test. You may have a defense. Specifically, a Sappy County DUI lawyer explains the “Rising Alcohol Level (RAL)” defense and how it might help you avoid a conviction.
The Breath Test Myth
Law enforcement officers, prosecutors, and even the media would have us all believe that failing a chemical breath test is the equivalent of a conviction in a DUI case. Fortunately, that is not the case. Once a police officer has determined that he/she has probable cause to arrest you, you will be transported to the police station or jail. At that point, the officer will ask you if you will submit to a chemical test. Unless there are extenuating circumstances, such as you are unconscious or the officer suspects you are under the influence of a controlled substance, you will be asked to take a breath test.
The breath test machine essentially tests your breath for the presence of trace amounts of alcohol. If alcohol is detected, the machine performs a complicated mathematical calculation that arrives at your Breath Alcohol Concentration, or BAC, level. If your BAC level is over 0.08 percent, you are over the legal limit. The test result will subsequently be used against you at trial to prove that you were driving under the influence. So far, a conviction does sound like a foregone conclusion right? It may indeed without any additional information; however, once you learn how alcohol actually metabolizes in your system you will start to understand why a conviction may not be certain in some cases.
Rising Alcohol Defense as Explained by a Sappy County DUI Lawyer
One defense that may apply in your case is referred to as the “Rising Alcohol Level (RAL)” defense. RAL may be a defense if your BAC level was close to the legal limit of 0.08 at the time you took the test because the defense is based on the science of alcohol absorption. Timing is the key with this defense. When you consume alcohol, the alcohol is absorbed into your bloodstream and your BAC level rises. Your BAC level will continue to rise until it reaches your “peak absorption rate.” If you consumed alcohol shortly before driving, your BAC level would have continued to rise even after you were stopped. In fact, you might have reached your peak absorption rate right about the time you took the breath test. If so, your BAC level at the time of the test was significantly higher than your BAC level was when you were actually operating a vehicle.
Imagine, for example, that you stopped by a friend’s house after work. While there, you drank three beers over the course of an hour and then left because you needed to get home. When you left, you did not feel intoxicated so you thought driving home was okay since your house is only about a ten-minute drive away. Unfortunately, you got pulled over along the way home. The officer’s investigation took about 30 minutes, the ride to the jail another 10 minutes and the required observation period before taking the breath test took yet another 20 minutes. Altogether, there was a one-hour lapse of time between the time you were actually operating a vehicle and the time you took the breath test. During that time period, it is highly likely that your BAC level continued to rise and may have peaked out right about the time you took the breath test. You blew a 0.09 percent BAC level on the breath test. Because that was probably at your peak absorption rate, your actual BAC level when you operating a vehicle – which is the relevant BAC level – was probably much lower than the legal limit of 0.08 percent.
Contact Us
If you have been charged with driving under the influence (DUI) in the State of Nebraska, contact a Sappy County DUI lawyer at Petersen Law Office 24 hours a day at 402-513-2180 to discuss your case with an experienced Omaha DUI defense lawyer.
Attorney Petersen was invited to join the National Advocacy for DUI Defense (NAFDD) organization in 2013. NAFDD vets thousands of lawyers and only chooses those who have achieved stellar results in DUI defense cases. Attorney Petersen was named one of the Top 50 defense attorneys in Nebraska out of more than 5,000.
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