Attorney at Law

Rising Alcohol Defense

James Parker
March 7, 2022
Last reviewed by
October 18, 2023

What Is Rising Alcohol Defense?

The rising alcohol defense is a legal shorthand for a strategy defendants employ when charged with a DUI. This argument is founded in the scientific concept that as alcohol is absorbed into the body, the individual’s blood alcohol content (BAC) levels change.

In a nutshell, because the body cannot fully absorb all of the alcohol an individual consumes at once, their BAC fluctuates. This fluctuation generally increases the BAC of the individual for a period after drinking and then decreases as the body begins to break down the alcohol in the blood by way of the liver, kidneys, and lungs. 

Because of this fluctuation in BAC, the rising alcohol defense posits that the results of a BAC test may not be accurate. If there were not multiple tests performed over a period of time, or if the test was administered some time after the individual was pulled over, then there would be no simple way to confirm the accuracy of the initial test results. 

Additional arguments may also be implied such as the body type of the individual and or their biological sex in order to further argue that the variation in metabolism is likely. If this likelihood rises to the level of reasonable doubt, it can make prosecuting a defendant significantly more difficult.

Key Takeaways

  • The rising alcohol defense is a legal strategy that argues that while an individual may be over the legal BAC limit at the time of testing, it does not mean that the individual was over the limit when they were pulled over.
  • The rising alcohol defense is most commonly used in defense of DUI charges.
  • By disputing BAC test results with the rising alcohol defense, the idea of statutory intoxication may be disputed by proxy.
  • If you have been charged with a DUI and plan to use the rising alcohol defense, an experienced DUI attorney may be able to improve the outcome of your case by leveraging experience and expert testimony.

Rising Alcohol Defense and Driving Under the Influence (DUI) Charges

The main goal of the rising alcohol defense is to dismantle the “per se” intoxication argument. Under the per se DUI argument, having a BAC of 0.08 or greater means that the individual is at or above the legal limit and is therefore intoxicated as a matter of law (except in Utah where the limit is 0.05) with no further regard to conduct, physical symptoms, or reckless behavior.

The rising alcohol defense can also be used in conjunction with expert testimony that disputes the accuracy of a BAC test such as a blood test. In this case, the rising alcohol argument will be a part of a wider legal argument that the fundamental process of testing the defendant was not correctly administered and was in fact unfairly contaminated. This then casts doubt on the BAC test, often one of the most foundational parts of the legal defense. 

In either case, the purpose of the rising alcohol defense is to create a logical counter argument to the prosecution’s assertions in order to create room for reasonable doubt. Since a DUI is a criminal charge, the burden of proof lies with the state to provide enough evidence to convince a jury beyond a reasonable doubt that the defendant was intoxicated while they were driving. 

By explaining the rising alcohol defense to the jury, an attorney can present a reasonable explanation as to how the defendant’s BAC could have been at or above the legal limit when they were tested but not while they were driving. This presents a logical, scientifically supported reason that could instill enough reasonable doubt in the mind of the jury that the defendant cannot be found guilty under the reasonable doubt standard.

Bottom Line

If you have been charged with a DUI and are facing potential jail time, you will need an attorney experienced in the rising alcohol defense as well as other legal rationales for defending DUI defendants: a DUI attorney. An experienced DUI attorney can use expert witnesses, trial tactics, and specific experience to help secure the best possible outcome for your case.

By presenting the rising alcohol defense, utilizing expert witness testimony, and deconstructing the opposing witnesses, a DUI attorney can cast suspicion over the physical evidence in your case in order to secure you a fair chance at acquittal.

Ask a Lawyer

Ask your own question and get advice from expert attorneys
Ask Question

Featured DUI Law Lawyers

Ianuario Law

16 years in practice
Auto Accidents, DUI Law, Medical Malpractice
View Profile

The Clardy Law Firm, P.A.

28 years in practice
Auto Accidents, DUI Law
View Profile

Smith & Gaynor LLC

28 years in practice
Auto Accidents, DUI Law, Personal Injury, Wrongful Death
View Profile

Law Office of Tal Rubin, PC

22 years in practice
Auto Accidents, Personal Injury
View Profile

Paz Law

5 years in practice
Auto Accidents, Immigration Law, Personal Injury
View Profile

Law Offices of Denis Alexandroff, APC.

9 years in practice
Auto Accidents, Medical Malpractice, Premises Liability, Wrongful Death
View Profile


Are you looking for an attorney? Do you have questions about a legal case you are facing? Contact us now and we will put you in touch with a lawyer for free.
Attorney At Law is changing how clients connect with lawyers. By providing an innovative platform to lawyers who want to expand their practice’s reach, AAL is bringing law practices into the future.
6142 Innovation Way
Carlsbad, California 92009
Some of the content of this website may be considered attorney advertising under the rules of certain jurisdictions. The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship.
crossmenuchevron-upchevron-down linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram