Long Island DWI lawyer Jason Bassett (https://jbassettlaw.com/rising-bac-the-science-how-to-argue-it/) of the Law Offices of Jason Bassett, P.C. is drawing attention to a scientific defense that can be critical in New York drunk driving cases. The rising blood alcohol concentration (BAC) defense examines how alcohol continues to be absorbed into the bloodstream even after a person has stopped drinking and driving. When used correctly, this argument can challenge the reliability of breath or blood test results commonly used to support DWI charges.
Long Island DWI lawyer Jason Bassett explains that BAC is not a fixed number and can change significantly in the time between a traffic stop and a chemical test. For individuals charged with driving while intoxicated in Long Island, test results taken 30 minutes to two hours after the stop may show a higher BAC than what was present at the time of driving. This time gap can open the door to a defense strategy that questions the validity of prosecution evidence.
According to Long Island DWI lawyer Jason Bassett, many individuals facing drunk driving charges are unaware that legal and scientific factors could reduce or even dismiss the charges. Breathalyzer results are often seen as conclusive, but they do not always reflect a person’s condition while actually operating a vehicle. Understanding how rising BAC works is an essential part of challenging the timeline and outcome of a DWI case in New York.
“Your BAC doesn’t max out the second you set your drink down,” said Jason Bassett. “It continues to rise while your body keeps absorbing alcohol. This peak might happen 30 minutes to two hours later, or even longer.”
Blood alcohol concentration increases during what is known as the absorption phase, and continues until the body hits peak BAC. This is followed by the elimination phase, where the liver gradually breaks down alcohol at a standard rate. Because these processes take time, BAC results taken after an arrest may not represent levels at the moment a person was behind the wheel. This difference can play a key role in defending against DWI charges under New York Vehicle and Traffic Law § 1192(2), which requires proof of intoxication at the exact time of driving.
The Two-Hour Rule in New York, part of Vehicle and Traffic Law § 1194(2)(a), supports this defense strategy by requiring that chemical tests be conducted within two hours of arrest. Long delays in testing create further uncertainty about what the BAC level was during the actual driving period. If the BAC continued to rise after the traffic stop, the results obtained later could overstate the driver’s impairment.
New York law also provides legal presumptions under VTL § 1195(2), which relate to different BAC levels. If a test result falls below 0.08%, legal presumptions may support a defense against intoxication. For instance, a result between 0.05% and 0.07% carries a presumption of no intoxication. With a properly argued rising BAC defense, even a 0.09% reading could be called into question, allowing for a potential reduction in charges to Driving While Ability Impaired (DWAI), a non-criminal offense with significantly lighter penalties.
Long Island DWI lawyer Jason Bassett highlights that many personal factors influence how alcohol is processed. Weight, gender, body composition, food intake, and even stress levels can affect how quickly or slowly alcohol enters the bloodstream. Women generally reach higher BAC levels than men after consuming the same amount of alcohol, due to differences in body water, fat content, and alcohol-processing enzymes. Medications can also impact BAC by slowing metabolism or enhancing the effects of alcohol.
Because of these individual variables, prosecutors often rely on retrograde extrapolation to estimate what a person’s BAC was at an earlier time. Jason Bassett points out that this method is inherently flawed due to the number of assumptions it requires. Building a defense based on hard evidence—including receipts, timestamps, GPS logs, and witness statements—helps challenge these estimates and strengthens the rising BAC argument.
To establish a scientifically credible defense, Jason Bassett works with forensic toxicologists to interpret the data and present findings in court. The use of professional testimony transforms a theoretical defense into one grounded in objective evidence. Every moment—from the last drink to the time of testing—can be documented to form a clear timeline that supports the client’s version of events.
A DWI charge in Long Island does not have to result in a conviction, especially when the science behind rising BAC is used effectively. A strategic legal approach that considers timing, individual biology, and testing procedures can introduce reasonable doubt and shift the outcome of a case. Chemical test results alone do not always tell the full story.
Individuals arrested for DWI in Long Island who suspect that their test results may not reflect their condition while driving are encouraged to explore the rising BAC defense. Understanding how alcohol behaves in the body and when test results were obtained can significantly influence the direction of a case. Legal representation focused on these factors can lead to a more favorable result.
About the Law Offices of Jason Bassett, P.C.:
The Law Offices of Jason Bassett, P.C. defends clients facing DWI and criminal charges across Long Island and New York. Led by Jason Bassett, a former prosecutor with over 21 years of criminal law experience, the firm challenges flawed evidence and seeks fair outcomes through thorough preparation and strategic legal advocacy.
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