Legal Question in DUI Law in California

Re: false alcohol reading

The rising blood alcohol defense looks like it would be applicable to your case. The facts as you have indicated (.07% PAS, .08% station) look tailor made for the defense, but it is not the only defense available. Call us at 1-800-327-4652 so we can discuss your options.

Re: false alcohol reading

You may well have a "rising BAC" (blood-alcohol concentration) defense. It is not against the law to have over .08% (.10% in some other states) when tested at the police station, only at the time of driving. Thus, the prosecution must estimate the BAC at the time of driving (called "retrograde extrapolation"). Of course, they will always presume the worst (or best for their case): the BAC was higher an hour or so earlier. But since it takes 1/2 to 2 hours for alcohol to fully absorb, the alcohol level when finally tested may well be higher than when driving.

Two comments. First, even if you show possible below-.08% BAC when driving, they can still prosecute you for DUI -- that is, for driving under the influence (a separate charge from driving over .08%).

Second, the breath test you took in the field that registered .07% would seem to corroborate a rising BAC. However, these field devices (called PAS -- preliminary alcohol screening) are notoriously inaccurate and are generally used only like a field sobriety test to determine probable cause to arrest. Because of this, they are inadmissible in most courts in California -- two notable exceptions being Orange and Ventura Counties. So you may not be able to rely upon that test.

Lawrence Taylor (practice limited to DUI defense: 562-989-4774)