Rising Blood Alcohol Defense in DUI Cases
How Attorney Josh Tomsheck Can Help
When facing a DUI charge in Nevada, one of the most critical aspects of your defense is the timing of alcohol consumption in relation to when you were driving. The concept of a rising blood alcohol level is a scientifically recognized phenomenon that can have a significant impact on the outcome of your case. Attorney Josh Tomsheck of the law firm of Hofland & Tomsheck is an expert in using this defense to challenge DUI charges and protect your rights. This page will explain what the rising blood alcohol defense is, how it works, and how Josh Tomsheck can use it to defend your case in Las Vegas or anywhere in Nevada.
Understanding the Rising Blood Alcohol Defense
The rising blood alcohol defense is based on the principle that your blood alcohol concentration (BAC) is not static and can change over time. After consuming alcohol, it takes a certain amount of time for your BAC to peak. During this period, alcohol is being absorbed into your bloodstream, and your BAC is rising. If you are stopped and tested before your BAC has peaked, your BAC at the time of driving could have been lower than the level detected during the test. This is particularly important in DUI cases, as it can mean the difference between being under or over the legal limit at the time you were actually driving.
How Alcohol is Absorbed in the Body
To fully understand the rising blood alcohol defense, it's important to know how alcohol is absorbed and metabolized in the body. When you consume alcohol, it is absorbed through the stomach and small intestine and then enters the bloodstream. The rate at which this happens depends on several factors, including:
- The amount of alcohol consumed: Larger quantities of alcohol take longer to be absorbed.
- The concentration of alcohol in the drinks: Higher alcohol content leads to faster absorption.
- Food in the stomach: Eating before drinking can slow down the absorption of alcohol.
- Individual metabolism: Each person processes alcohol differently based on genetics, body weight, and other factors.
After absorption, alcohol is distributed throughout the body and eventually reaches the brain, where it affects cognitive and motor functions. Your BAC will continue to rise until the alcohol is fully absorbed. This can take anywhere from 30 minutes to two hours or more, depending on the factors mentioned above. Once peak BAC is reached, it will gradually decrease as the liver metabolizes the alcohol.
How the Rising Blood Alcohol Defense Applies in DUI Cases
In a typical DUI stop, the police may administer a handheld breath test, called Preliminary Breath Test (PBT) to measure your BAC for purposes of establishing probable cause to arrest you. After you are arrested, law enforcement will take a blood or breath sample, as an official forensic test for purposes of proving you are DUI in Court. If you are tested during the absorption phase, your BAC may continue to rise even after you have stopped driving. This can result in a higher BAC reading than what it was when you were actually operating the vehicle.
For example, imagine you had a few drinks and then drove home, where you were pulled over by the police. If your BAC was still rising at the time of the stop, your BAC at the time of driving may have been below the per se legal limit of 0.08%, even though the breath test conducted 30 minutes later shows a higher level. This discrepancy can be used to argue that you were not impaired while driving, despite the test result suggesting otherwise.
Using the Rising Blood Alcohol Defense in Court
To effectively use the rising blood alcohol defense, it is crucial to have an experienced DUI attorney like Josh Tomsheck who understands both the legal and scientific aspects of this defense. Here's how Josh Tomsheck can use this defense to challenge your DUI charges:
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Reviewing the Timeline: Josh Tomsheck will meticulously review the timeline of your alcohol consumption, the time you were driving, and the time of the breath or blood test. This information is critical to establishing whether your BAC was likely to have been lower while driving.
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Analyzing Drinking Patterns: He will examine your drinking patterns, including how much you drank, over what period, and whether you consumed food. This analysis helps in estimating the absorption and peak BAC times.
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Utilizing Expert Testimony: Josh Tomsheck often works with expert witnesses, such as toxicologists, who can testify to how your BAC would have changed over time. These experts can provide scientific evidence to support the argument that your BAC was still rising at the time of the test.
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Challenging Test Accuracy: The accuracy of breath and blood tests can be affected by several factors, including the timing of the test and the equipment used. Josh Tomsheck will investigate whether proper procedures were followed and whether the testing equipment was properly calibrated and maintained.
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Cross-Examination of Police Officers: An effective defense often involves challenging the observations and procedures of the arresting officers. Josh Tomsheck will cross-examine the officers to identify inconsistencies or errors in their observations and methods.
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Presenting the Rising BAC Theory to the Prosecutor or Judge: In many cases the potential of a rising BAC convinces the prosecutor they may have issues with the case if it were to proceed to Trial. Josh Tomsheck can often use this to get your case reduced or dismissed. If the case goes to trial, Josh Tomsheck will clearly explain the rising BAC theory to the judge (or jury in a Felony case), helping them understand how the timing of your alcohol consumption can impact the test results. This can create reasonable doubt about whether you were over the legal limit at the time you were driving.
Why You Need an Experienced DUI Attorney
The rising blood alcohol defense is a complex and technical argument that requires a thorough understanding of both the law and the science behind alcohol absorption. It is not a defense that can be effectively argued by a general practitioner or an inexperienced attorney. Josh Tomsheck has the knowledge, experience, and resources to build a strong defense using this and other strategies to fight your DUI charges.
As a nationally board-certified criminal trial lawyer and a former Chief Deputy District Attorney in Clark County, Josh Tomsheck has handled numerous DUI cases with successful outcomes. His comprehensive understanding of Nevada DUI laws, combined with his experience in prosecuting and defending these cases, gives him a unique perspective that he uses to protect his clients' rights and freedoms.
Contact Josh Tomsheck Today
If you have been charged with a DUI in Las Vegas or anywhere in Nevada, and believe that the rising blood alcohol defense may apply to your case, it is crucial to act quickly. Attorney Josh Tomsheck and the team at Hofland & Tomsheck are dedicated to providing the highest level of legal representation. They will thoroughly investigate your case, challenge the evidence against you, and work tirelessly to achieve the best possible outcome.
Don't leave your future to chance. Contact Josh Tomsheck today at 702-895-6760 to schedule a consultation and discuss your case. Whether it's your first offense or you have prior convictions, Josh Tomsheck has the expertise and determination to defend your rights and help you navigate the complex legal process. Let him use his skills and experience to fight for you and secure the best possible result in your DUI case.
