In Georgia, one definition of DUI, DUI per se, is such that if a state-administered test finds an individual’s BAC to be .08 or higher within three hours of driving, that person is deemed to have been driving under the influence. But considering the nature of alcohol’s digestion and dissipation, the three-hour window written into the DUI statute is both irrelevant and illogical. Recently, we had a client who was pulled over and blew into a hand-held preliminary breath test. The numerical result was .07 BAC. After performing standard field sobriety tests, our client was arrested. She consented to a state-administered breath test. At the station she blew a .106. So, was our client over the legal limit of .08 BAC at the time of driving? Probably not, but she is still considered DUI.

An early stage of alcohol digestion is the absorptive phase, which can last anywhere from 15 minutes to two-and-one-half hours. In the absorptive phase, the distribution of alcohol is not uniform throughout the body – there is more alcohol in arterial rather than venous blood. Arterial blood bathes the aveolar sacs in the lungs, which affects the amount of alcohol in your breath. At the end of the absorptive phase, blood-alcohol content peaks and the alcohol begins to dissipate. But because there is more alcohol in arterial blood during the absorptive phase, it is likely that individuals who take a state-administered breath test after arrest will have a higher BAC than when they were driving. Since Georgia’s DUI statute only accounts for the dissipation of alcohol rather than the initial phases of digestion, individuals like our client are forced to deal with an undue charge from an inexact, speculative law.

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