Rising Blood Alcohol Levels Used as Potential DWI Defense

Rising blood alcohol levels can potentially be used as a defense against a DWI. A person may not have been drunk when they were initially driving, but increasing blood alcohol concentration (BAC) could put him or her over the legal limit as time passes. Successfully using rising BAC as a defense can be tricky, and certain conditions should apply. An experienced DWI attorney St. Paul can answer questions about this type of case.

Minnesota Laws Against DWI

Thousands of people in Minnesota are arrested each year for DWI. Each case may be a little different, depending on the arrest, previous violations, and criminal record. Violators of the law face a myriad of criminal and administrative sanctions.

For the first offense, drivers can expect at least 90 days in jail, depending on the BAC level. Administrative penalties include 90 days of no driving, which is reduced to 30 days with a guilty plea. A level higher than 0.16 warrants one year in jail and either one year of no driving or one year of driving with an ignition interlock. An ignition interlock requires the driver to breathe into the device before the car starts.

Second and third offenses include more jail time and loss of driving privileges. After four offenses in a ten-year period, the charge will be a felony with seven years in prison and/or a $14,000 fine.

What Does Rising BAC Mean?

Social drinkers and moderate drinkers can learn to estimate their BAC, and they know their personal limits for driving. However, rising BAC levels can cause drivers who were not drunk initially to be over the legal limits as time passes.

When alcohol is consumed, it is absorbed into the bloodstream gradually, via the stomach and small intestine. The liver will then filter the blood, and the alcohol will eventually break down. Once a person has stopped drinking, his or her blood alcohol levels continue to climb because absorption is gradual. Eating can slow the breakdown of alcohol, also leading to slowly rising BAC levels.

For rising BAC to be used successfully, a few conditions should be met.

  • Near the legal limit
  • A time delay before testing
  • No clear signs of intoxication

A rising DWI defense can help prevent a conviction. DWI penalties are severe, and anyone who could benefit from this defense should consider legal assistance.



Max Keller has won countless jury trial cases involving misdemeanors and felonies, sex crimes, and DWI’s. He is a member of the Minnesota Society for Criminal Justice, which only allows the top 50 criminal defense attorneys in the state as members. Max is a frequent speaker at CLE’s and is often asked for advice by other defense attorneys across Minnesota.

Years of Experience: Approx. 20 years
Minnesota Registration Status: Active
Bar & Court Admissions: State of Minnesota Minnesota State Court Minnesota Federal Court 8th Circuit Federal Court of Appeals State of Maryland

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