In my day to-to-day work as a Michigan driver's license restoration lawyer and a Detroit DUI attorney, I spend most of my time dealing with alcohol, and the problems it causes. One of the biggest problems I run into is a positive alcohol test result. If you know what that means, then you're likely subject to some kind of testing, whether it be by ignition interlock, or because you have to provide a breath or urine sample somewhere. If you're facing a DUI in the Detroit area, or want to restore your Michigan driver's license, (or you need a clearance of a Michigan "hold" on your driving record because you want to get a license in another state), your relationship to alcohol takes on a primary role in your life. In the context of a Michigan license reinstatement case, where the central issue is that a person has quit drinking, my efforts are directed to understanding, and then explaining a your former relationship to alcohol, meaning how they made the transition from drinker to non-drinker. In a Detroit area DUI, I have to examine and help you define, and perhaps redefine, your drinking behavior.
In a 1st offense DUI, we'd hope, right out of the gate, that your drinking is not problematic, and that we can show that your arrest represents an isolated and out-of-character incident. In 2nd and 3rd offense cases, the law automatically presumes that a person has a troubled relationship to alcohol, so my efforts are directed to changing both the appearance and the reality of your alcohol use.
That all sounds great. Yet in the real world, if you're in any of these situations, things aren't really that great. Chances are, you are being (or darn soon will be) tested for alcohol. You are expected to come up clean, and test negative. And for all of that, nothing can cause more immediate damage than a person testing positive for alcohol.
At its simplest, testing is mandated to make sure you're not drinking. It's trouble enough for some people to stay away from alcohol, I've learned. Most often, those who test positive for alcohol are either on bond, while their DUI case is pending, or on probation as a result of it. For whatever reason, a person will take the gamble and drink, figuring they either won't be tested, or enough time will have elapsed so that if they are, their result will be clean. Perhaps they think they have it all figured out; I never get calls from anyone telling me that they drank and didn't get caught. I'm called either when they do get caught, or, even worse, when someone tests positive for alcohol but has not been "drinking."
Almost every week, I hear from someone who has delivered a positive alcohol test but swears that he or she was not drinking. Most often, the story goes that they used mouthwash with alcohol in it, or they were feeling sick and took cold medicine with alcohol in it, sometimes without ever realizing that in doing so, they were "consuming" alcohol. The real problem is that, as much as I hear this story weekly, the people who monitor test results, meaning the Secretary of State, the court, or the probation department, hear it every day, and probably multiple times every day. The famous "Nyquil excuse" has become just that - an all too famous excuse. It has really come to lose any legitimacy as an explanation for a positive alcohol test. This, of course, presents a huge problem to anyone for whom it's the truth.
To put this in perspective, I have a flyer in my office that I received from a local, Macomb County probation officer that his department has posted on the window of its office warning against even trying the Nyquil excuse for a positive alcohol breath test. The information explains that a person would have to drink a rather large amount of Nyquil to achieve anything above a trace BAC result, and that before they were able to consume enough to produce such a high positive test result, they'd be on the floor experiencing seizures as a result of all the other ingredients contained in any kind of cold medicine. The flyer backs up its warning by citing the Michigan State Police toxicology lab its information source.
If I can get one thing across in this article, it's that you have to make an effort to avoid being in this situation. It is my hope that someone will read this article before they take a morning swig of cold medicine, rather than after.