Michigan Criminal Defense Lawyer Blog
In my capacity as a DUI and driver’s license restoration lawyer, I deal with positive alcohol tests and the problems they cause just about every single day. This article will focus on failing a PBT and/or an ETG test in a DUI case. This happens either when a person is required to test while on bond, or while he or she is on probation. We’re going to be blunt and honest in our discussion here. In that context, it’s almost a given that you’re not here reading this because you want to know how to avoid failing an alcohol test in the first place, but rather because you have already failed one. Sure, there are cases where a person is the victim of a false positive result, but we won’t waste much time on that because the vast majority of positive results do, in fact, accurately reflect that a person had been drinking. For the most part, this article will focus on those real life situations where a person has been caught, despite being ordered to refrain from consuming alcohol, and now faces going back to court for a bond or probation violation.
The reader may be surprised to learn how often this happens. Because I am a DUI lawyer, and not some guy who takes on every kind of case under the sun, almost every client in my busy office comes in for something related to either current or past OWI case, or at least something similar. I begin almost every workday in some court or other for a DUI or DUI-related case. Over the course of my years, I have been involved with, quite literally, more failed alcohol and drug test violations than I could ever count. I’ve handled violation cases for people in every kind of occupation, from doctorate-level professionals, successful business types, to folks who are changing careers. The point I’m making is that getting caught happens to people of every stripe. What I want the reader to understand is that this has less to do with my practice than the experience of the court system and the people that go through it. It’s no more surprising for a surgeon, nurse, accountant or lawyer to wind up violating a “no drinking” condition of bond or probation than it is for Snake the Biker to do so. Accordingly, alcohol and drug testing is the great equalizer, and here, one’s social capital doesn’t count for very much, because positive is positive, whether you are the Executive Vice President of a Fortune 500 company or you empty trash cans at the mall.
This, of course, explains why probation officers and Judges are skeptical, and can seem almost outright cynical. They become that way over time. This will happen to anyone who plays some part in this system (including me, except I get paid to work past it). With time and experience, you hear and see it all, from the occasional false-positive test to all kinds of bizarre circumstances, with offers of just about every excuse you could ever imagine. In fact, one of my all-time favorite explanations that people give for testing positive for alcohol actually has a name – the “NyQuil defense.” You can probably guess the rest. I know better than to try using it, but it wasn’t long ago that I saw a lawyer standing next to a client in a local court and as soon as cold medicine was brought up, the Judge, quite literally, waved it off with her hand and said something like, “Oh no, we’re not even gonna try the NyQuil defense.” I was on my way out of the courtroom, but I sure hope that lawyer had a better “plan B” than his “plan A.”
Here’s another explanation that nobody believes – the notion that a person accidentally consumed alcohol. It’s one thing to pick up someone else’s glass and take a swig of something with booze in it, but that will normally never be enough to end up as a positive test result. Similarly, if your strategy to handle a violation hearing in something like an OWI case is to try and convince the Judge that you didn’t realize the punch was spiked, you should include bringing a toothbrush to court with you as part of that plan, as well. The NyQuil defense doesn’t fly anywhere, nor does the “I didn’t know it had alcohol in it” story. This means, then, that when it comes to testing positive for alcohol, the only 2 realistic responses are that you did, in fact, drink, or that the test result is wrong. Even worse than the losing strategies above is some hair-brained plan to try to BS your way through this and argue the result is wrong when it really isn’t.
From a legal marketing perspective, I’d certainly be a lot better off listing all the things that could be wrong with a positive-for-alcohol test to give a sense of false hope to a potential paying client that handling a violation is as easy as showing up, and trying to turn the tables on the court while blasting away and waiting to see what sticks. In a violation, the court doesn’t have to prove to you that nothing is wrong with your alcohol test, or that the test you took otherwise meets certain criteria. If you get a positive result and want make some argument that the test you took isn’t reliable, or that your result is wrong, then you’re going to have to prove that to the Judge, and this isn’t something to try unless you genuinely were not drinking.
For example, when examining a series of positive breath tests, it is usually easy to find an errant result because alcohol normally metabolizes at a rate of .15 milligrams per hour. I can look at an activity log and tell whether the device is registering alcohol that had been consumed by drinking and is being metabolized. These readings will be very different from those obtained when alcohol is detected, but is also dissipating, or evaporating. These distinguishable results are the result of “incidental contact” with alcohol, like what is knows as “mouth alcohol” from the use of mouthwash right before a breath test. Unless you have something like this, or you can find something specifically wrong with YOUR test or its results, and not the kind of test you took in general, such an approach is a fool’s errand. It doesn’t work that way.
For my part, I have better success than any lawyer I know keeping my clients out of jail in violation cases, and I do that, not by trying to BS our way through this, but by being honest. Throughout my entire career, I have seen how people form relationships with alcohol that, over time, become problematic. I have been fascinated by this and have studied it from every angle since first becoming a lawyer. Years ago, I decided to formalize all of that and completed a post-graduate program of addiction studies, and have since used that clinical knowledge every single day in ways that help my clients get better outcomes. Let me elaborate:
When you test positive for alcohol because you actually drank, you need help to get out of trouble. That doesn’t happen by trying to BS your way through it. The whole system is set up to catch people and detect exactly that kind of behavior. If that’s what you want to do, then I wish you good luck, but I want no part of it. If you think about it and try and put yourself in the Judge’s position for a moment, a person testing positive for alcohol while on bond or probation seems like they’re either giving you the finger, or they have such an out-of-control problem that they can’t help themselves. It’s my job to thread that needle and first assure the Judge that you’re not flipping him or her off, but neither do you have such a bad drinking problem that you are suffering from urges you can’t resist.
This requires striking a balance. Every case is different and every Judge is different, so it’s kind of like trying to hit a moving target while you’re moving, as well. Most (but not all) lawyers understand the need to shift the Judge’s focus away from the idea that the person has disobeyed his or her order (which, of course, they have). Unfortunately, the usual approach is to “over-pathologize” things. Most often, and despite what should seem obviously wrong about such an approach, people will offer (and lawyers of less skill will let them) some sob story, like how someone to whom the person is close died or was diagnosed with some terminal illness, or the dog died, or whatever. And believe me, I’m not being insensitive, but no matter what the story, when a person reaches for alcohol because of stress, it makes everything look worse.
Unless you really do have a bad drinking problem, you don’t want to be incorrectly seen as having one!
Sometimes, in an attempt to avoid getting locked up, a person will claim that he or she really needs help. This may be true, and not at all exaggerated. The problem, however, is that while one may get all the sympathy in the world from the court and indeed avoid jail, it is also very likely that he or she will be put through an intense, meat-grinder program of rehab, meetings and testing like they never thought possible. In other words, be careful what you wish for.
Threading the needle requires convincing the Judge (when it’s true, of course), that a person didn’t drink out of desperation, nor out of a selfish disrespect for the court’s order. This isn’t a skill that can be learned. As an advocate for another’s situation, a lawyer either was born with the ability to communicate in this way, meaning he or she has the charisma and skill to speak convincingly, or not. And not to sound conceited, but I think “not” applies to 99% of the population, lawyers included. That’s not to say that practice isn’t important, but this isn’t the kind of thing one learns in law school. Exactly how this is done in any given case is far more a matter of “feel” than anything else. Think of it this way: a pilot can take all the flying lessons in the world, but how to gently and safely land an airplane in high winds requires that very sense of “feel” that goes above and beyond all the book learning.
To be sure, there are cases where a person drinks because his or her relationship with alcohol has grown problematic. As much as I am equipped to work with that, I also know that we don’t want to overdo it and wind up getting the client tied up in more rehab and testing than necessary. You can pay any lawyer a lot less than me and do just that. My job is to produce the best outcome possible, and there is almost always more to that than just avoiding jail; it’s about avoiding any and all unnecessary consequences, as well. To use a crude analogy, if you get an infection on your toe, proper medical care (like a course of antibiotics) will almost certainly cure it. Of course, you could just have your whole leg amputated, instead, and that would get rid of the infection all right, but that’s far from the best possible outcome.
There is a lot more to this, of course, but this piece does, I think, serve as an adequate overview of testing positive for alcohol in violation of a bond or probationary condition. In the next article, we’ll tie all this in to the practicalities of handling a bond or probation violation cases for a client.
If you are facing a bond or probation violation in any local, Detroit-area (meaning Oakland, Macomb or Wayne County) district or circuit court and are looking to hire a lawyer, do your homework, read around, and then check around. All of my case screenings are done over the phone, right when you call, and you can reach my office at (586) 465-1980, Monday through Friday, from 8:30 a.m. until 5:00 p.m. We’re here to help.