A frequent comment I get from clients charged with DUI is that they believe that their blood alcohol level was elevated because they had consumed no food prior to drinking. This raises the question of the relevance of drinking on an empty stomach to DUI defense.
Research suggests that peak blood alcohol levels are lower for people with a full stomach, than for people with an empty stomach. In addition, the same research suggests that peak blood alcohol levels are reached earlier for people with an empty stomach as food in the stomach delays absorption. (See Jones, "Concentration Times Profiles of Ethanol in Capillary Blood After Ingestion of Beer, 31 Journal of the Forensic Science Society 429 1991).
This can be relevant because there is normally a delay of at least thirty minutes from time of driving and the time of the blood or breath test. Particularly with borderline readings, it can be important to establish the likely blood or breath alcohol level at the time of driving. This process of "retrograde extrapolation" to establish a rising blood alcohol defense is based on a number of factors, icluding the drinking pattern, time of last drink, type of alcohol, and weight of suspect. It also appears that the presence or absence of food in the stomach will enter this equation.
In defending DUI cases in Los Angeles and Orange Counties, it is essential that your DUI attorney discusses these issues with you and consults with a toxicologist or breath/blood alcohol expert in an effort to establish the likely BAC at the time of driving. This analysis may result in establishing that a defendants true blood alcohol level at the time of driving was likely under the legal limit of .08%.