A defense that our OWI lawyers have successfully used in operating while intoxicated cases in Oakland County is the rising blood alcohol defense. The heart of the rising blood defense is in the understanding that alcohol can take time to absorb into the body. This is crucially important in situations where somebody stops drinking, drives shortly thereafter, is pulled over, and then about an hour later, given a breath or blood test. The key argument in the rising blood defense is that the driver's blood alcohol level at the time of the driving was lower than at the time of the alcohol test.
There are two ways to make this argument before a jury. The first way is to hire an expert toxicologist to testify about how alcohol is absorbed into the body. Knowing the size of the person, what they drank, how much they ate, and other factors can give the expert enough information to give their opinion on the driver's blood alcohol level at the time of the driving. The problem with hiring an expert is that it can be an expensive experience and having a defense expert will likely cause the prosecutor to get their own expert from the Michigan State Lab.
The second method, which is the method that has been proven successful at trial on numerous situations by Amberg & Amberg attorney Jim Amberg is to discuss the concept of rising blood alcohol through the officers who have to testify in the case. Officers are trained in this concept to a certain extent and their experience in the field generally will also show that alcohol levels rise, sometimes over lengthy periods of time. In one jury trial in the 52-3 District Court in Rochester Hills, Jim Amberg was able to secure his client a not guilty verdict in a situation that the client had a .19 blood alcohol content. Jim used the argument that the client's blood alcohol level had risen from the time of the driving to the time of the Datamaster breath test.