Alcohol affects everyone differently. Depending on your previous alcohol
use – including the frequency and amount that you drink –
you may have built up a tolerance. Alcohol tolerance refers to how, for
most people, the effects of alcohol are diminished after habitual use.
This could be relevant in a
DUI case because if you have a high tolerance, your recorded blood-alcohol level
may not accurately reflect your level of inebriation. There are several
different types of alcohol tolerance.
Alcohol tolerance that is built up over a long period of time is called
acquired tolerance. Over the course of long-term habitual alcohol use,
a drinker's nervous system and metabolism undergoes some changes.
First, less and less alcohol reaches the part of the brain that causes
inebriation. Second, the alcohol that reaches that part of the brain has
a diminishing effect. The bodies of individuals with acquired tolerance
absorb and distribute alcohol very differently from those without.
The second major type of alcohol tolerance is a result of the fact that
the body absorbs and eliminates alcohol at a steady rate, regardless of
the rate of alcohol consumption. This type of tolerance is called acute
tolerance, and it may cause drivers who were not impaired at the time
of driving to have higher
blood alcohol content (BAC) after being taken to the station and tested than they did when they
were actually driving. Both of these types of tolerance may lead a driver
to be charged with drunk driving when he or she is not actually impaired,
regardless of what the tests say.
How Alcohol Tolerance Could Factor Into Your Defense
In California, most defendants are charged with two offenses after an arrest
for DUI. The first is driving under the influence of alcohol and the second
is driving with blood alcohol content (BAC) greater than the legal limit
prescribed by law, which is currently .08%. This second offense is known
as the "per se" statute. The second charge based upon the BAC
is a rebuttable presumption. This means a skilled Orange County DUI lawyer
may be able to present a defense for you that will incorporate how the
concept of alcohol intolerance may allow you to achieve a positive result
in your case.
What is clear is that scientific studies have repeatedly found the existence
of variability in the alcohol tolerance of individuals. The logical conclusion,
and one that may be legally presented by your lawyer, is that not every
person with an alleged BAC of .08% or greater is an impaired driver. There
is no doubt that the consumption of alcohol alters brain function. What
is also without controversy is the fact that those individuals who consistently
drink alcohol develop desensitization to the effects of alcohol. Several
competing theories suggest how alcohol tolerance chemically leads to desensitization,
but the conclusion is the same: a per se BAC test is not accurate in evaluating
What this means is that more alcohol must be ingested by someone who is
alcohol tolerant than by someone who does not drink regularly to be impaired.
There have been numerous studies on this subject focusing on such topics
as alcohol consumption and memory, alcohol consumption and performance
on specific tasks, and the correlation, if any, between an individual's
alcohol tolerance and the results of those tests. The results of these
studies consistently reveal the fact that an individual who has developed
an alcohol tolerance performs better.
If you have been charged with a DUI and believe your alcohol tolerance
may have affected your test results,
contact our firm today for a free consultation!