Grand Rapids Rising Blood Alcohol

If you’ve been charged with DUI in Grand Rapids Michigan, then you may wonder how your lawyer can possibly defend your case? There are myriad ways to defend a DUI, and one of them is called the “rising blood alcohol defense.” This law exists in Michigan because our DUI laws require the prosecutor to prove that you were intoxicated at the time of the driving. This means that it is theoretically irrelevant if you were intoxicated at the time of the breath or blood test. Showing this time connection is even more difficult if your DUI case involves drugs rather than alcohol.

This is because one way for the prosecutor to prove intoxication is with the breath or blood test results. In an alcohol case this means that if the prosecutor can prove that you had a bodily alcohol level at or above .08 at the time of your operation, then the jury may find you guilty on this basis alone. The jury instruction allows the jury to assume that the alcohol level was the same at the time of the driving as it was at the time of the test, but they are not required to do so.

Showing this time-based connection is not always as straightforward as it seems. For one thing, it usually takes time to get a breath or blood test, usually an hour or more, and the blood alcohol or drug level can change significantly during this hours’ time. This is an important because during this hour your alcohol or drug level is either increasing or decreasing. If your lawyer can build a defense showing that your drug or alcohol levels rose between the time of driving and the time of the test, then you may have a rising blood alcohol defense.

The rising blood alcohol defense is very fact specific and is really only applicable when the prosecutor’s case is based heavily on the results of the chemical test. If the prosecutor has plenty of other evidence of impairment or intoxication collected at the roadside, for example where the field sobriety tests look bad, then establishing a time connection between the driving and the test result, is far less important.

On the other hand, if you looked good at the roadside, or where there are other factors that might have impacted your appearance at the roadside, such as where an accident occurs, the time connection is far more important.

Also, it is possible for the prosecutor to utilize expert testimony to try to show, through a process called retrograde extrapolation, that your drug or alcohol level was actually higher at the time of the driving.

If you have been arrested for drunk driving in Michigan and think you may have a rising blood alcohol defense, then call the Barone Defense Firm for a free case evaluation. We will review your facts and let you know if we think we can raise this defense successfully on your behalf.

For more information on this defense, please refer to Defending Drinking Drivers, a James Publishing publication.