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.
Perhaps because I see this issue so frequently, I cannot ever recall not knowing that products like Nyquil and Formula 44D have alcohol in them. I think the same thing goes for the Secretary of State’s Driver Assessment and Appeal Division (DAAD), probation officers and Judges. Accordingly, there is a tendency for all of them to just figure that everyone knows this stuff. However, and because I actually sit down and listen to and talk with my clients, I know that many people either don’t know, don’t think about, or just plain forget that certain products contain alcohol.
This means that some positive test results truly are innocent mistakes.
In the real world, though, that’s often just not good enough. When whoever is in charge of supervising your case (the Michigan Secretary of State if it’s a driver’s license issue, or a local court if you’re dealing with a Michigan DUI) gets wind of a positive test result, then the only conclusion to be reached is that you had alcohol in your system, or else the test is false. False positives for alcohol can occur, but they happen far less when breath samples are taken than when they are the result of things like urine (including ETG) testing or SCRAM tether readings.
Sometimes the most profound wisdom is also the simplest. Recently, I was reminded that, “the past is gone forever.” Whatever else, you cannot go back in time. If you get a positive test result, you cannot take it back. You can explain it, or explain why it’s wrong, but you can’t turn back the hands of time and undo it.
Inevitably, you’ll be called before someone to explain a positive test result. Very often, you will have been expected to take a subsequent test 5, 10 or 15 minutes after the first to rule out a false positive. When an ignition interlock unit is involved, some people don’t stick around for the next required test, claiming that they “freaked out” or didn’t know what to do, which, of course, only makes things look worse. Either way, you’re stuck trying to offer up what is generally considered one of the oldest tricks in the book as an excuse to someone who has heard it a million times.
If you’re in this situation, then of course you need expert help. As I noted before, the “Nyquil” excuse is most regrettable when it is true. You’ll need to do a lot better than just come in with no circumstantial or extraneous proof or some kind of verification of your having been ill. Even if you live alone, maybe you called in sick the next day, or told someone at work to keep their distance because you didn’t feel well. We’ll need to round up as much of that kind of evidence as possible to at least give some credibility to your story.
In the end, though, it’s just far better to not be in this position in the first place. Look at the products in your medicine cabinet. If any of them contain alcohol, replace them with alcohol-free alternatives. There are plenty.