At Gold and Witham, we have won many DMV Hearings based on a rising blood alcohol defense. The idea is that following consumption of alcohol, the human body can take up to an average of forty-five minutes to reach peak blood alcohol absorption. If a breath or blood test taken following an arrest for DUI gives a reading that is just over a .08%, the theory is that the defendant's actual blood alcohol level at the time of driving may be under a .08% if the defendant is still absorbing recently consumed alcohol and the defendant's blood alcohol level is still rising from the time of driving to the time of the test.
The recent California case of Coffey v. Shiomoto (Director, Calif. Dept. of Motor Vehicles) Cal.Rptr.3d, 2013 WL 4196651 (Cal.App. 4 Dist.) decided that, at an APS Hearing, the DMV hearing officer could look at the Licensee's manner of driving, objective symptoms of impairment and performance of field sobriety tests to contradict a defense expert's opinion that the driver was under a .08% at the time of driving.
For the defense to work at the DMV, it is necessary to address all of the evidence through the testimony of a toxicologist to persuade a DMV hearing officer that the Licensee was likely under a .08% BAC at the time of driving. This means that evidence consistent with sobriety at the time of driving should be pointed out, including a lack of evidence of impaired driving, a lack of mental and physical impairment and all points favorable to the Licensee in his or her performance of field sobriety tests. In conjunction with a favorable drinking pattern, it should still be possible, in the right case to obtain a set aside of a suspension at an APS Hearing.
If you have been arrested for a DUI in Los Angeles and have questions about your privilege to drive, please contact DUI Defense and DMV Hearing Lawyers, Gold and Witham for a free case evaluation.