In the world of probation violations, people try to advance all kind of stupid defenses that don’t fly. Probably the most famous is what some Judges call the “NyQuil defense,” a tired and losing attempt to explain away a failed alcohol test of some sort. In this article, I want to explain how a stupid defense can make things worse, and how a lawyer who doesn’t have the experience and confidence to call BS when he or she sees it actually makes things worse for the client, and not better.
Let’s start with the lawyers. There are too many of them so hungry for cases that they compete with each other by cutting prices down to the bone, and, for fear of losing a potential customer, will simply nod and agree with everything a potential client says. A good lawyer should be upfront and explain that a stupid idea won’t fly, not just take someone’s money and try it anyway. More than anything else, that’s the sign of a lawyer desperate for work. Remember, too, that every Judge out there has already heard every excuse in the book 10 times over, and won’t be easily fooled.
This is why the “NyQuil defense” is so famous; it would take a lot (as in multiple bottles) of that stuff to fail most breath or urine tests used by the courts. When used as directed, or even used in double-doses, a person taking cold medicine will NOT fail either a breath or EtG urine test, or will at least only produce a result that shows minimal ingestion. There is an obvious difference between test results produced by the beverage consumption of alcohol and that produced by using cold medicine, even if a person “swigs” it. Every Judge knows this, as does any good lawyer. Thus, as an excuse for a positive test result, it won’t work.