Getting charged with a DWI in New York can be life-changing, especially when breath test results seem to speak for themselves. However, those numbers may not tell the full story. One powerful and often misunderstood defense is the rising BAC argument, which highlights how your blood alcohol concentration can increase after you’ve stopped drinking, and even after you’ve stopped driving.
If you believe your breath test result doesn’t tell the whole story, it’s important to act quickly. Long Island DWI lawyer Jason Bassett understands how to use the rising BAC defense to your advantage and can help uncover the evidence needed to challenge flawed test results. Call the Law Offices of Jason Bassett, P.C. today at (631) 259-6060 for a confidential consultation and get the experienced legal support you need to fight your DWI charge.
How Your BAC Changes After Your Last Drink
How your blood alcohol concentration (BAC) changes after your last drink can be the key to how a DWI charge might be challenged and how a rising BAC defense could apply to your case.
You might think your BAC shoots up the moment you take a sip, but that’s not how your body works. Most alcohol is absorbed in the small intestine; only a minority is absorbed in the stomach. That’s where most of the alcohol makes its way into your bloodstream, and it’s also why there’s often a delay between your last drink and when you hit your peak BAC.
Imagine your BAC on a curve with three key phases:
- The Absorption Phase: This kicks off right after you start drinking. Your BAC begins to climb as alcohol enters your system. If you’ve had a drink on an empty stomach, that curve might shoot up faster than you expect. That’s why even just a few minutes can make a big difference in how impaired you feel or how impaired you appear.
- The Peak Phase: Your BAC doesn’t max out the second you set your drink down. It continues to rise while your body keeps absorbing alcohol. This peak might happen 30 minutes to two hours later, or even longer. So if you were pulled over shortly after drinking, your BAC could have still been climbing when the police tested you.
- The Elimination Phase: Eventually, your body finishes absorbing alcohol and starts breaking it down. Your liver handles most of that work, eliminating alcohol at a fairly steady rate, typically about 0.015% per hour. From here on, your BAC slowly drops, but that decline takes time.
| Phase | Description | Notes |
|---|---|---|
| Absorption Phase | Begins after you start drinking; BAC climbs as alcohol enters your system. | Rises faster on an empty stomach. |
| Peak Phase | BAC continues to rise after drinking; reaches maximum during continued absorption. | Peak may occur 30 minutes to two hours later, or even longer. |
| Elimination Phase | Body finishes absorbing and begins breaking down alcohol at a steady rate. | Liver eliminates alcohol at about 0.015% per hour. |
Why Timing Matters in a DWI Case
Here’s where it gets important. If there was a delay between the traffic stop and the chemical test, say an hour or more, the result might not reflect your BAC at the time you were actually driving. What the test shows is just a snapshot, not the full picture.
Prosecutors often try to present the BAC result as a hard, fixed number. But in reality, it’s just one point on a constantly shifting curve. A skilled DWI attorney can help you challenge that assumption by arguing that your BAC may have been legal while driving and only rose afterward during that critical delay.
Jason Bassett, Esq. – Long Island DWI Lawyer
Jason Bassett, Esq., brings over two decades of experience to defending individuals accused of DWI and other serious offenses throughout Long Island. A former prosecutor turned dedicated defense attorney, he fights aggressively to protect his clients’ rights against law enforcement overreach and prosecutorial power. With a reputation for strategic legal insight and tenacious courtroom advocacy, Mr. Bassett handles cases at both the state and federal level, always focused on achieving the best possible outcome.
- 21+ years of criminal law experience
- Former Assistant District Attorney in Queens County
- Member, National College for DUI Defense
- Admitted in NY State and Federal Courts
- J.D., Boston College Law School (1999)
More Than Just Drinks: The Many Factors That Skew Your BAC
You might assume that your blood alcohol concentration (BAC) is just a direct reflection of how many drinks you’ve had. But the truth is, your actual BAC is shaped by far more than just what’s in your glass. Dozens of personal and environmental factors are at play, which makes it nearly impossible for anyone, especially the prosecution, to accurately back-calculate what your BAC was at a specific time. This process, called retrograde extrapolation, is riddled with assumptions. And that’s where your defense has a real opportunity to push back and introduce reasonable doubt.
Why Weight, Gender, and Body Composition Matter
Not all bodies process alcohol the same way. Your weight is a big part of the equation. If you weigh more, you likely have more body water, which means the alcohol you drink gets diluted more than it would in someone lighter. That results in a lower BAC, even if you both drank the same amount.
But it’s not just your weight, it’s what your body is made of. Muscle absorbs alcohol better than fat does. So if you have a higher muscle-to-fat ratio, your BAC may stay lower than someone of the same weight with more body fat.
Gender also plays a role. If you’re a woman, you probably reach a higher BAC than a man who drank the same amount. That’s because women tend to have more body fat, less body water, and lower levels of an enzyme called alcohol dehydrogenase, which starts breaking down alcohol in the stomach before it hits your bloodstream. Hormones and even birth control pills can affect how your body processes alcohol too. So what you feel and what your BAC says can vary from one day to the next.
The Food and Drink Factor
What’s in your stomach has a big impact on how fast alcohol is absorbed. Drinking on an empty stomach lets alcohol race straight to your small intestine, where it’s absorbed fast and hits your bloodstream hard, leading to a quicker and higher peak BAC. But if you’ve eaten, especially something rich in protein or fat, your stomach holds onto that alcohol longer. That slows the absorption and gives your body more time to start breaking it down. The result is a delayed and often lower peak BAC.
The kind of drink you choose matters too. A shot of whiskey is absorbed more quickly than a glass of beer. But if the alcohol content is too high, above 30 percent, it can actually irritate your stomach and slow things down. On the other hand, drinks with carbonation, like champagne or rum and Coke, can push alcohol through your system faster and raise your BAC more quickly.
How Health, Mood, and Meds Play a Role
How you’re feeling physically and emotionally can influence how alcohol affects you. If you’re tired, stressed, sick, or anxious, your body may not metabolize alcohol the way it normally would. Hormonal changes and stress responses can amplify the effects of drinking, making you feel more impaired than expected.
Then there’s your medicine cabinet. More than 150 medications can interact with alcohol, and not in a good way. Some can increase how drunk you feel. Others slow down how your body breaks down alcohol. We’re talking antidepressants, antibiotics, blood thinners, and even everyday meds like aspirin. The problem is, police rarely ask about these factors when they’re investigating a DWI, even though they can drastically impact your BAC.
Turning Science into a Winning DWI Defense in New York
If you’ve been charged with DWI in New York, you might feel like the odds are stacked against you, especially if there’s a chemical test result showing a BAC over the legal limit. But here’s what you need to know: the science behind rising BAC could be the key to turning your case around.
In New York, prosecutors must prove beyond a reasonable doubt that your blood alcohol concentration (BAC) was 0.08% or higher at the exact time you were driving. That’s the heart of the law under Vehicle and Traffic Law § 1192(2). But if your BAC was still rising when you were pulled over, the test you took later doesn’t necessarily reflect what your BAC was when you were actually behind the wheel.
This is where the rising BAC defense comes in. It challenges the assumption that your BAC was over the limit while driving by pointing out that the chemical test result only shows your level after your body had more time to absorb the alcohol. In other words, the test doesn’t prove what it needs to.
New York’s Two-Hour Rule
New York law also gives you a little extra leverage through what’s known as the Two-Hour Rule. Under VTL § 1194(2)(a), any chemical test is supposed to be administered within two hours of your arrest to be admissible in court. If the test was delayed, maybe due to transport, processing, or other reasons, that opens the door for your defense to question how reliable or relevant that number really is.
When you combine this legal rule with the science of rising BAC, a delayed test result becomes even more questionable. The longer the wait, the more likely your BAC could have increased in that time, meaning it wasn’t necessarily that high when you were driving.
Using Legal Presumptions to Your Advantage
New York law gives your defense team even more tools through the legal presumptions outlined in VTL § 1195(2). These guidelines create built-in inferences based on your BAC:
- If your BAC is 0.05% or less, the law presumes you were not impaired or intoxicated.
- If your BAC is between 0.05% and 0.07%, it’s presumed you were not intoxicated, though it could support a lesser charge like Driving While Ability Impaired (DWAI).
- If your BAC is between 0.07% and 0.08%, it’s still presumed you were not intoxicated, though it might support a DWAI.
Let’s say your chemical test came back at 0.09%. That might sound incriminating at first. But with a strong rising BAC argument, a defense lawyer could explain that your BAC was likely lower while you were actually driving, possibly around 0.07%. And under the law, that number carries a presumption that you weren’t intoxicated. That can seriously weaken the DWI charge and give your lawyer the chance to fight for a reduction to a non-criminal DWAI, which carries much lighter consequences.
Building the Scientific Foundation of Your Defense
By now, you know that timing plays a crucial role in a rising BAC defense. But to make that argument credible, your attorney needs more than just general claims about when you had your last drink. They need concrete evidence to back it up. This is where the real work begins.
Every minute of your night matters, and documenting those moments helps paint a clear, fact-based picture of what actually happened. That includes details like:
- The exact time you had your last drink
- What and how much you drank
- When you last ate
- What time you started driving
- When you were pulled over
- When the chemical test was finally administered
These details are not left to guesswork. Your defense team will gather anything that can support your timeline. This might include bar and restaurant receipts, credit card transactions, timestamped text messages, GPS data from your phone, and even witness statements. Each piece helps strengthen the scientific story behind your rising BAC defense.
When all of this information is paired with expert testimony from a forensic toxicologist, your defense shifts from speculation to science. This is how your case moves from a simple challenge to a compelling, evidence-based argument in your favor.
Get Strategic DUI Defense from the Law Offices of Jason Bassett, P.C.
A DWI charge doesn’t have to lead to a conviction, especially when your breath test result may not reflect your actual impairment at the time you were driving. The rising BAC defense is backed by science and can be a powerful tool in the hands of a knowledgeable attorney. From identifying timeline inconsistencies to challenging flawed testing procedures, a strategic defense can make all the difference in your case.
At the Law Offices of Jason Bassett, P.C., we understand the science, the law, and how to use both to protect your rights. Long Island DWI lawyer Jason Bassett has years of experience fighting drunk driving charges throughout New York and is ready to help you build the strongest possible defense. Call (631) 259-6060 today to schedule your confidential consultation and take the first step toward protecting your future.