As a Michigan criminal and DUI lawyer who is in court almost every single day, one of the most common situations I see involves someone on probation for a criminal or DUI charge testing positive for alcohol or drugs (often, but not always, marijuana). If you’re reading this, it’s likely that you, or at least someone you care about, is or will be facing a probation violation for a positive test result. In almost every case, there is no dispute about how or why there is a positive test result, except that some people will still try to offer what is known as the “Nyquil defense” and blame the detectable presence of alcohol on the use of something like cold medicine. Let’s not waste any more time than necessary on this: There is no sitting Judge who will buy this story (you have to gulp the stuff by the multiple bottles for it to show up) which is why it is has been nicknamed the “Nyquil defense” in the first place. If that’s your excuse, then you’ll need a new one. The point here is that, almost without exception, a probation violation for a positive test result happens because a person has, in fact, used the substance that showed up. That will be the focus of this article.
In many cases, a person will just take the chance that he or she won’t get called in for or will otherwise have cleaned out enough to pass a breath or urine test. Most of the time, it’s not like the person has been partying up a storm; failing a test is usually a case of bad luck and bad timing. Even so, the reality for anyone facing a probation violation for a positive breath or urine screen is that you’ve been caught, and absolutely everyone knows that going back in front of the Judge is not going to be fun. Sure, there are 2 sides to every story, but in the case of a probation violation, unless you can clearly show that the test result is wrong, the Judge’s side of that story is the only one that matters. For everything we could say, the bottom line is that the Judge is looking at someone he or she could have put or kept in jail, and who, despite the fact that it was explained that staying out of jail requires not drinking alcohol or using drugs, chose to do so anyway. There is no way to sugar coat or soft peddle this.
At this point, it is tempting to go off on how it’s unfair that a person who has never been in trouble before and who got caught in one mistake is penalized to the point of not even being able to have a glass of wine with dinner, or for some special occasion. The thing is, none of that matters. When someone is placed on probation and a condition of that probation is to refrain from drinking alcohol or smoking pot, it basically amounts to a kind of “deal” with the Judge. From the Judge’s point of view, NOT drinking and/or NOT smoking pot is the price a person agrees to pay to stay out of jail. A person is perfectly free to reject the terms of that deal, but he or she must understand that by doing so, the Judge is likewise perfectly free to reject the terms that called for the withholding of punishment, like jail. In other words, as much as it may suck to not be able to have a drink while on probation, it is what it is. All the frustration about it is nothing more than hot air that won’t help a bit if you’ve tested positive. Everybody understands this because, as much as they might express these feelings privately, no one is dumb enough to do so to the Judge. So how do we fix this situation?