The most persuasive evidence that prosecutors have on a DWI arrest is typically the "Chemical Breath Test" result or blood test result (for more info on "Breath Tests" click here). NYS Vehicle and Traffic Law prohibits operating a vehicle with .08% or more "blood alcohol." So, how does alcohol get into the bloodstream, what effects the rate of absorption and how does the human body eliminate alcohol?


Alcohol Absorption Into The Bloodstream


Most people are aware of the fact that if they are consuming alcoholic beverage while they are eating or after they have eaten the impact is delayed and sometimes is less intense.  This is because only about 20% of alcohol consumed is absorbed through the stomach, 80% is absorbed in the small intestine.  Thus, if a beverage is consumed while eating or after eating the absorption of most of the alcohol is delayed until the food/alcohol mixture in the stomach is partially digested and then passed into the small intestine.  This process can take 1-2 hours depending on how much food and beverage has been consumed. As a result, the absorption of alcohol tends to take longer and have a more gentle effect.  On the other hand, consuming a beverage on an emtpy stomach will lead to a very rapid absorption as the liquid is passed into the small intestine very rapidly.


Absorption, Elimination and BAC Level

The level of Blood Alcohol is effected by 3 basic factors: 1) amount of alcohol consumed; 2) length of time of consumption; and, 3) body weight. There are other factors that can make minor differences in BAC, these include age and gender. As described above, drinking on an empty or full stomach can effect how quickly someone reaches peak BAC, as well as, how high that peak is. The longer it takes for all the alcohol to be absorbed the more of the alcohol is eliminated by the liver which metabolizes it into sugar. An average weight person will "eliminate" about as much alcohol is contained in a single beer or mixed drink per hour. For an easy to use "BAC Calculator" click here.


Implications of Alcohol Absorption and Elimination on DWI Arrests

The rate of absorption and elimination can have dramatic impact on the results of a chemical test. For example, an individual who ate dinner while consuming some alcoholic beverages and then drove home could easily be stopped by the police and arrested while most of the alcohol they consumed was still in the stomach (and not in their blood). However, by the time they are transported back to a police station and given a chemical breath test (often 60-90 minutes after their vehicle was stopped) most of the alcohol may now have been passed into their small intestine and absorbed into their blood. Thus, while the driver was not ".08% or more" while they were actually driving, the prosecutor will use the chemical test to claim that they were. An experienced DWI attorney will work hard to get a jury to understand the that issue. Drivers who have been stopped by police and arrested for DWI should be aware of the delayed absorption phenomena.


Conversely, a driver who has consumed alcohol without eating much should be aware that as time goes on their body will be eliminating alcohol. Thus, waiting as long as possible to take a chemical test may reduce the BAC level recorded.

For more detailed information about the physiology of alcohol absorption and elimination, click here.


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Law Offices of Glenn W. Magnell
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Please note: Information on this website is intended to inform, not to advise. No one should attempt to interpret or apply any law without the assistance of an attorney that is familiar with that area of law, the rules of the court involved and the specific facts of each individual case.

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Unlike most attorneys I came to the practice of law as a second career. Prior to becoming an attorney I spent 20 years as a business executive, eventually running a large subsidiary of a Fortune 500 company. While those years in private business were challenging and rewarding, there came time that I wanted to do something different and more directly related to assisting other people. So, I left the business world, went to law school, passed the New York State bar exam and became a practicing attorney.  You can read my full bio here and meet our staff here.


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