Absorption Rate — The Rising BAC Defence
AGGRESSIVE DEFENSE & DEDICATED REPRESENTATION
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No Charges Filed
Aggravated Assault
Charge: Aggravated assault arising from an alleged drive-by shooting
Court: Bay County
Outcome: The client faced the possibility of a lengthy mandatory prison sentence. Following discussions with prosecutors and law enforcement, no charges were filed.
Negotiated Plea
DUI Manslaughter
Charge: DUI manslaughter
Court: Bay County
Outcome: The client faced up to 15 years in prison and permanent loss of driving privileges. The matter was resolved by negotiated plea to probation, with eligibility for a hardship license.
Not Convicted
Sexual Battery
Charge: Sexual battery
Court: Bay County
Outcome: The client, who holds a professional license in Florida, faced up to 15 years in prison and mandatory sex offender designation. The charge was reduced, over the objection of the complainant, to simple battery, a misdemeanor. The client was not convicted of any criminal offense, was not designated a sex offender, and returned to work with their professional license intact.
Not Convicted
Violation of Probation
Charge: Violation of probation, second violation. Alleged failure to report, a new battery offense, failure to complete DUI school, and failure to complete court ordered community service.
Court: Bay County
Outcome: The client was not convicted.
Not Convicted
Violation of Probation
Charge: Violation of probation. Alleged failure to report and a new felony offense of obtaining a controlled substance by forgery, while serving probation for multiple counts of obtaining a controlled substance by fraud, forgery, and criminal use of personal identification.
Court: Bay County
Outcome: The client was not convicted.
Frequently Asked Questions
Can this defence work even if I tested well above 0.08%?
It depends on the margin. If you tested at 0.09%, the rising BAC defence may establish your BAC was at or below 0.08% at the time of driving. If you tested at 0.15%, the margin is harder to overcome. Rusty Shepard evaluates every case individually to determine whether the absorption rate defence is viable and how strong it is given the specific timeline and facts.
Does the prosecution account for rising BAC?
The prosecution presents the test result as evidence of BAC. They are not required to account for the absorption timeline unless challenged. This is exactly why having an experienced DUI defence attorney who understands the science is essential — without the challenge, the number stands unchallenged.
The Rising BAC Defence
Why the Number on the Breathalyser May Not Be the Number That Matters
Most people arrested for DUI believe that if a breathalyser test shows 0.09% or 0.10%, the case is over. It is not. Florida DUI law requires the prosecution to prove your BAC was at or above 0.08% while you were operating the vehicle — not at the time of testing, which often occurs 45 minutes to over an hour after the stop.
This distinction is the foundation of the rising BAC defence, and it is one of the most scientifically grounded and legally powerful challenges available in a DUI case. Rusty Shepard, a Nationally Ranked Superior DUI Attorney, deploys this defence in every case where the timeline and the facts support it.
How Alcohol Absorption Works — The Science Behind the Defence
When you drink alcohol, it is not instantly absorbed into your bloodstream. Absorption begins in the stomach and continues in the small intestine. The process takes time — typically 30 to 90 minutes after your last drink, depending on individual factors. During this absorption phase, your BAC is still rising.
This creates a critical window. If you had your last drink shortly before driving and were stopped and arrested, your BAC at the time you were behind the wheel may have been lower — potentially significantly lower — than the BAC recorded when the test was administered at the jail.
The Typical DUI Timeline — and Why It Matters
A typical DUI arrest in Panama City follows this approximate sequence:
- You are pulled over — your driving pattern, appearance, and demeanour are observed by the officer
- Field sobriety tests are administered at the roadside — taking 15 to 30 minutes
- You are arrested and transported to the Bay County Jail or a testing facility
- The mandatory 20-minute observation period begins before the breath test can be administered
- The breath test is administered — often 60 to 90 minutes or more after the initial stop
If you consumed alcohol in the hour before driving, your BAC may have still been rising during that entire period. The test result reflects where you were on the absorption curve at the time of testing — not necessarily where you were when you were driving.
Factors That Affect Absorption Rate
- Body weight and composition — alcohol distributes through body water; lower body weight means higher BAC from the same consumption
- Gender — women have lower levels of alcohol dehydrogenase (the enzyme that metabolises alcohol) and absorb alcohol more quickly than men of comparable size
- Food consumption — eating before or during drinking significantly slows absorption. An empty stomach produces rapid peak absorption; a full stomach dramatically slows it
- Drink type and strength — carbonated drinks (mixers, champagne) accelerate absorption; higher-concentration drinks produce faster absorption
- Rate of consumption — drinking quickly produces a faster and higher peak than the same amount consumed slowly over a longer period
How Rusty Shepard Uses the Rising BAC Defence
The rising BAC defence requires building a precise timeline: what you consumed, when you consumed it, when you stopped drinking, when you were stopped, when the test was administered, and where on the absorption curve you were likely to be at each point. Expert toxicologist testimony is typically used to establish the range of probable BAC values at the time of driving versus the time of testing.
If the evidence supports a credible argument that your BAC was below 0.08% when you were driving, the prosecution cannot prove guilt beyond a reasonable doubt — even if the test result was above the limit.
Arrested for DUI in Panama City or Bay County? Call Shepard Law at (850) 290-2505. Nationally Ranked Superior DUI Attorney. Free consultation. Available 24/7.
No Charges Filed
Aggravated Assault
Charge: Aggravated assault arising from an alleged drive-by shooting
Court: Bay County
Outcome: The client faced the possibility of a lengthy mandatory prison sentence. Following discussions with prosecutors and law enforcement, no charges were filed.
Negotiated Plea
DUI Manslaughter
Charge: DUI manslaughter
Court: Bay County
Outcome: The client faced up to 15 years in prison and permanent loss of driving privileges. The matter was resolved by negotiated plea to probation, with eligibility for a hardship license.
Not Convicted
Sexual Battery
Charge: Sexual battery
Court: Bay County
Outcome: The client, who holds a professional license in Florida, faced up to 15 years in prison and mandatory sex offender designation. The charge was reduced, over the objection of the complainant, to simple battery, a misdemeanor. The client was not convicted of any criminal offense, was not designated a sex offender, and returned to work with their professional license intact.
Not Convicted
Violation of Probation
Charge: Violation of probation, second violation. Alleged failure to report, a new battery offense, failure to complete DUI school, and failure to complete court ordered community service.
Court: Bay County
Outcome: The client was not convicted.
Not Convicted
Violation of Probation
Charge: Violation of probation. Alleged failure to report and a new felony offense of obtaining a controlled substance by forgery, while serving probation for multiple counts of obtaining a controlled substance by fraud, forgery, and criminal use of personal identification.
Court: Bay County
Outcome: The client was not convicted.
Frequently Asked Questions
Can this defence work even if I tested well above 0.08%?
It depends on the margin. If you tested at 0.09%, the rising BAC defence may establish your BAC was at or below 0.08% at the time of driving. If you tested at 0.15%, the margin is harder to overcome. Rusty Shepard evaluates every case individually to determine whether the absorption rate defence is viable and how strong it is given the specific timeline and facts.
Does the prosecution account for rising BAC?
The prosecution presents the test result as evidence of BAC. They are not required to account for the absorption timeline unless challenged. This is exactly why having an experienced DUI defence attorney who understands the science is essential — without the challenge, the number stands unchallenged.
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