As an experienced Michigan Driver’s license restoration attorney I can state with certainty that medications can cause a positive test for alcohol with an ignition interlock device. One of the most used excuses is the Nyquil defense. Yes, Nyquil can cause a positive test for alcohol. The Nyquil defense rarely works. It does not hold up to scrutiny.
The following is a very basic explanation as to why the Nyquil defense does not work. A person’s BAC (blood alcohol content) reduces about 0.02 an hour once a person has stopped drinking. Nyquil contains 10% (perhaps up to 25% in some reports) alcohol. Even if you drank a whole bottle of Nyquil, your BAC would barely get to 0.02, especially the next morning. However, it could if you drank several bottles of the medication. If you admitted that you did drink several bottles of Nyquil, the hearing officer would believe that you were abusing the substance. After all, if you have an interlock device in your car, it is because you have lost your license due to drinking and driving offenses.
In any event, considering that the body eliminates alcohol at a rate of .02 per hour, you would not test .02 in the morning several hours later, let alone test any higher than .02, that is, unless you drank many bottles. Your body would eliminate the Nyquil by the time you would have to test. As a Michigan driver’s license restoration lawyer, you should trust me when I say that the courts and Secretary of State hearing officers do not accept the defense based upon the body’s elimination rate of alcohol.
I do agree that you could get a high alcohol reading if you just consumed Nyquil and immediately tested with the interlock device. But, why put yourself on the defensive having to prove that you did not drink liquor. Since, Nyquil does contain a high amount of alcohol you should not use Nyquil when you are alcohol testing. It is much better to avoid the problem altogether. There are alternatives on the market that do not contain alcohol.
The Nyquil defense is very weak. The research shows that you would have to consume a large amount of Nyqil so as to support a high alcohol reading over a .02. This is especially true if you claim that you used the recommended dosage of Nyquil the night before testing with the interlock device. There would almost be no way that you should test positive. The excuse will fail.
As a Michigan driver’s license restoration lawyer I do know that interlock devices are not always accurate. Nevertheless, NyQuil is a substance that you should avoid while alcohol testing. If your question is, “I drank alcohol, but could I say that I tested at .05 because I drank Nyquil the night before,” that answer would be an unequivocal: No. At a probation violation, for example, it would be much more prudent to admit to the court that you had a relapse than lie about alcohol use. The court does appreciate honesty.
As an experienced Michigan driver’s license restoration lawyer I do not suggest using the Nyquil defense. With that said, there are times that I have been able to successfully defend major violations at the Michigan Secretary of State by using prescription cough syrup as a defense. I supported my argument by showing that the client had a recent and valid prescription from a doctor. Moreover, the cough syrup was the only medication that could remedy the client’s cough.
Again, I would avoid using any substance that contains alcohol while you have the interlock device. If you have lost your license due to alcohol convictions, and now have an interlock device in your car, it would not be wise to argue that you are consuming alcohol even if it is medicinal. The use of any alcohol just hurts your argument that any alcohol problem is under control pursuant to Administrative Rule 13.
As a Michigan driver’s license restoration lawyer, I can tell you that the courts and hearing officers have heard the cough syrup and Nyquil defense too many times. It has been abused so often that it no longer holds any credibility – even if you are telling the truth. Judges and hearing officers tend to believe that a person is lying and is trying to cover up for drinking while not being allowed to do so. That is the unfortunate truth.
Another important fact to remember is that the courts and Michigan Secretary of State advise people to avoid a list of products that contain alcohol when testing. In essence, you have been put on notice. So, the argument from the State is, “Why would you use a substance that contained alcohol when you were advised not to?” Again, you could and will avoid a problem by abstaining from using any substance with alcohol that would result in a positive test on an interlock device.
In my experience as a Michigan driver’s license restoration lawyer, many people do not realize that substances other than drinking may result in positive tests for alcohol. One of the most common causes of false positive is – residual mouth alcohol. Residual mouth alcohol is alcohol that is trapped on the mouth. For example if you use a breath strip, some of the alcohol will be trapped. If you take a breath test, the device will record the residual alcohol trapped in your mouth. Even if you did not drink the use of a breath strip will result in a high alcohol test. However, since residual alcohol eliminates from your mouth quickly, a minute later your test results should fall to .000.
As stated, positive alcohol readings can be created by many substances. Drug Testing While On Cold Medications The substances, if trapped in the mouth can result in a high BAC.
There are a list of medications that can affect interlock devices. Any Michigan driver’s license restoration lawyer should know about the effects the following can have on an alcohol test.
- Nyquil and other OTC medications that contain alcohol: As stated Nyquil and other cough and cold products that you can purchase from a drug store contain alcohol. They are clearly marked.
- Asthma medications: Salmeterol, Albuterol and budesonide are asthma medications that will result in a positive test for alcohol. I won a violation hearing where the client used his inhaler for asthma. While it did contain alcohol as a propellant for the medication, the client was not aware of the ingredients. The client was advised to contact his doctor to get an inhaler without alcohol. If you have an interlock device contact your doctor to clarify the ingredients.
- Mouthwash:Listerine and similar mouthwash products contain alcohol. Read the label to find a mouthwash that is alcohol-free.
- Toothache remedies: Products like Anbesol and Orajel do contain alcohol. They will definitely result in a positive alcohol test.
- Diabetes: People with diabetes can test positive for alcohol even if they did not consume alcohol. The process is rather complex. When a person’s body does not produce the right of insulin, glucose has a tendency to accumulate in the bloodstream. When that happens the person has high blood sugar. When this happens, the body’s cell burns fat instead of the glucose thereby producing ketones. Ketones develop acetone in a person’s mouth and breath. This will result in a false positive. If you do have diabetes and it is well-documented we can provide evidence at the interlock violation hearing to argue that your violation was based on a false-positive.
- Windshield washer fluid: At one time, I had a client spill windshield washer fluid in his car. The interlock device required that he test for alcohol. When he did test, he tested positive for alcohol use. He called me in a panic. I suggested that he remain in his vehicle and roll down all of the windows; rinse the interlock mouthpiece out with water; and wash his mouth out with water. I told him to keep testing until he reached .000 on the device. When he could get the car started I advised that he go to the nearest police station and get a PBT signed by an officer.
- What to do if you get a positive reading by using a substance containing alcohol?
- If you receive a positive test on an interlock device because you used an alcohol containing substance you should immediately rinse your mouth out with water. Do not wait until the next day to test. Do not wait hours later to test. It is critical that you keep testing until you get .000. Since most of the items contain a low amount of alcohol, like mouthwash, the alcohol should quickly dissipate. The interlock logs will show that you went, for example, from .06 to .0000 within minutes. If you had been truly drinking alcohol it would not dissipate that quickly. We would have a stronger argument to win your violation hearing because we have evidence to show that you did not use.
- Get a Preliminary Breath Test: Immediately go to the nearest police station to get a PBT. The readings should be zero. Have the officer sign the verification form.
In order to safeguard yourself against an interlock violation or even probation violation, I would highly recommend avoid using any substance that contain alcohol. There are many alternatives on the market that do not contain alcohol.
As a Michigan driver’s license restoration lawyer I would advise you that if you did violate the requirements of your ignition interlock device, I urge you to call our office. You can call and ask questions even if you do not hire our firm. Since you have had your license restored. you do not want to risk having your license revoked again.
I have been a Michigan driver’s license restoration lawyer for nearly 15 years. There isn’t much that I have not seen when it comes to license hearings. We most often win our clients their license back at the first hearing. That is why we offer a guarantee – we will win the first time. If we do not, we will work for free until we do.
We will guide you through every step of the process. We will answer all of your questions. Most importantly we will get you back on the road.
If you have a violation hearing, you should call an experienced Michigan driver’s license restoration lawyer. We will fight by your side and do everything possible so that you can keep driving.
Another great source of information: https://blog.rapiddetect.com/2014/10/29/drug-testing-while-on-cold-medications/
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James E. Czarnecki II (586) 718-2345
Genevieve L. Taylor (586) 350-6044