NyQuil use as a defense for a positive alcohol test while on probation.

By Attorney James Czarnecki| Czarnecki & Taylor PLLC|OCT 30,2022

NyQuil use as a defense for a positive alcohol test while on probation.
NyQuil use as a defense for a positive alcohol test while on probation.

NyQuil’s use as an alcohol test defense is offered as a way to explain a positive test for probation and interlock violations. While NyQuil contains alcohol, the effect should not be enough to produce a positive alcohol test result when used properly.  The results would be negligible at best.

There are many reasons you should not use NyQuil as a defense for a positive alcohol test while on probation. First and foremost, the courts have heard this too many times. Using NyQuil as a defense against an alcohol test while on probation can actually make you look suspect in other ways. For example, will raise concerns about your overall sobriety, or suggest that you are trying to hide something from your probation officer.

The problem with NyQuil as an alcohol test defense is that the alcohol in a dose of NyQuil is too short-lived to produce a substantial blood alcohol level. NyQuil effects last for 2 hours before they subside entirely. Therefore, any test will capture your actual drinking pattern because the alcohol level would be at .00 a short time later.

Does Nyquil contain alcohol?

Nyquil is a popular medicine used to treat cold and flu symptoms. It contains several active ingredients, including antihistamines and pain relievers, that help relieve various common cold symptoms and flu symptoms. However, one of the most commonly asked questions about Nyquil is whether it contains any alcohol content.

The answer to this question depends on which specific types of Nyquil are being discussed. Some formulations of the medication contain small amounts of alcohol as an active ingredient, while others do not. For example, nighttime versions of Nyquil have more alcohol than daytime versions to help promote sleep and relaxation. This formulation also is stronger because it contains more active ingredients.

However, the alcohol content of Nyquil is relatively low. While Nyquil contains a small amount of alcohol in specific formulations, this ingredient should be avoided if you are alcohol testing.

Many people take Nyquil in order to help relieve their symptoms. It contains an ingredient called dextromethorphan, which can cause you to test positive for alcohol during a breathalyzer or blood test. While this may seem strange at first, there are actually some legitimate reasons Nyquil might cause a false positive result on these tests.

One of the main reasons Nyquil might cause a false positive alcohol result is because it contains ingredients that are very similar in structure to ethanol, which is the main chemical compound found in alcoholic beverages. This means that if your body absorbs too much dextromethorphan from Nyquil, it can be mistaken for alcohol on a breathalyzer or blood test.

One of the main concerns when using over-the-counter medications like NyQuil is that they contain ingredients that can trigger a positive reading on an alcohol test. This is because some of these ingredients, particularly acetaminophen (Tylenol), can be mistaken for alcohol by the testing device. Therefore, if you are on probation and required to undergo regular alcohol tests, it is best to avoid using NyQuil or any other over-the-counter cough suppressant that contains acetaminophen.

There are other factors that can influence whether Nyquil will cause a false positive result, such as how long it has been since you took the medication, your current health and weight, and what other medications or substances you have consumed recently.

Overall, Nyquil is a useful medication that can help relieve cold and flu symptoms, but you should know the potential for false positive alcohol results. If you are concerned about this possibility, avoid it while testing for court or other purposes.

Read more about the Myths of the Nyquil Defense.

When used properly, NyQuil fails as an alcohol test defense, based on the body’s rate of processing alcohol.

So, if Nyquil contains alcohol, why is it still a bad defense? At first glance, it might seem like a good defense for someone who has been accused of consuming alcohol. However, there are several reasons this type of defense will not be successful.

First, courts and the SOS instruct you to not use any substance containing alcohol. So, they put you on notice not to use it even if you later claimed you didn’t know about the alcohol content. Next, tests have shown NyQuil has little or no measurable effect on the blood alcohol level. It is effective only within two hours of oral ingestion, which would not protect a drinker from testing positive for alcohol several hours later, and more so the next day.

Any attempt to use NyQuil as an alcohol test defense is misguided. First, the science behind it is not strong. A person’s BAC (blood alcohol content) reduces by about 0.02 an hour once a person has stopped drinking. NyQuil contains 10% (perhaps up to 25% in some reports) of alcohol. Even if you drank a whole bottle of Nyquil, your BAC would not get over 0.02, especially the following day. But it could be if you consumed several bottles of the medication. However, that is another problem. If you admitted drinking several bottles of NyQuil, the Secretary of State hearing officer or probation officer would think you are abusing the medication. 

Consider that the body eliminates alcohol at a rate of .02 per hour. With an average NyQuil dose, you would not test .02 in the morning at that rate.  The alcohol would be gone in a maximum of two hours.  You wouldn’t test positive for alcohol unless you drank several bottles.  As an experienced Michigan driver’s license restoration lawyer and criminal defense attorney, believe me when I tell you the courts and Secretary of State do not accept the Nyquil defense based upon the body’s elimination rate of alcohol.

I agree you could get an alcohol reading if you just consumed Nyquil and were immediately tested with the interlock device or at the probation department. But why put yourself on the defensive, having to prove that you did not drink alcohol? Since Nyquil contains alcohol, you should not use Nyquil when testing. It is much better to avoid the problem altogether. There are alternative medications on the market that do not contain alcohol. 

If you use Nyquil, the best way to avoid any issues is to wait at least two hours before being tested for alcohol. The effects of Nyquil last only two hours, and they are entirely gone. This still doesn’t mean that NyQuil will fail a breathalyzer – in reality, it means the opposite: NyQuil shouldn’t be expected to have any real effect on a breath test result.

Do not use NyQuil as an alcohol test defense

NyQuil, as an alcohol test defense, is weak. There would almost be no way that you should test positive when taking a regular dose. You would still violate the interlock device or probation requirements because you are told to avoid using any substance that contains alcohol while testing.  Just avoid the problem. Do not put yourself in that position.  You would be just setting yourself up for unnecessary trouble.

There are many reasons you should avoid taking NyQuil or any other over-the-counter cough suppressant. Nyquil may cause false positives in your alcohol tests and land you in more trouble with the courts. Positive tests can interfere with your ability to complete court-mandated drug treatment programs, which could result in additional penalties such as jail time or fines.

If you consumed alcohol, it would be a better defense to admit to the court that you relapsed. Judges appreciate the honesty.  The courts have heard the NyQuil defense too many times, and it has no credibility.  

Given these factors, it is important always to be honest when appearing before a judge in court. If you have consumed alcohol or taken any medication before being tested for alcohol use, you must disclose this information upfront. By doing so, demonstrate your ability, to be honest. Although it can sometimes be difficult to admit to consuming alcohol if you face accusations, you must maintain honesty throughout this process. Doing so will give you the best chance of avoiding severe consequences before a judge. If you need additional support or guidance, consider consulting an experienced criminal defense attorney in your area who can provide specific advice regarding alcohol counseling.

If you have an interlock device, avoid any alcohol-containing medication.  If you have lost your license because of alcohol convictions and now have an interlock device, you should not consume any alcohol, including medicine.  Using any form of alcohol hurts your argument that any alcohol problem is under control as required by Administrative Rule 13. 

Probation officers have heard NyQuil used as a defense for a positive alcohol test while on probation too many times. This is because people try to blame a positive test on Nyquil. Many people on probation also try to use this excuse, even though it does not always work. The courts and SOS  hearing officers have heard the 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 believe that a person is lying and is trying to cover up for drinking alcohol.

Finally, probation officers understand some people try to use excuses like NyQuil to get out of taking responsibility for their actions. They are often skeptical about this defense and may be more likely to believe in the results of a positive drug or alcohol test.

If you are on probation and have tested positive for alcohol, it is important to take responsibility for your actions and avoid using excuses like NyQuil. Instead, you might seek help from an addiction counselor or other professional who can help you address any underlying substance abuse issues that might cause your behavior. With the right support and guidance, you can get back on track and stay productive, sober, and safe while on probation.

Another essential thing to remember is that the courts and the Michigan Secretary of State instruct people to avoid alcohol products when testing.  The judge or hearing officer will say, “Why would you use a substance that contained alcohol when you were advised not to?” Avoid the problem by avoiding any form of alcohol.

Can an ETG test or interlock device tell the difference between NyQuil and liquor?

No.  One of the most common causes of false positives is – residual mouth alcohol. Residual mouth alcohol is alcohol that is trapped in the mouth. For example, if you use a breath strip, some alcohol will be trapped in your mouth for a short time. If you immediately take a breath test, the device will record the residual alcohol. Even if you did not drink, a breath strip would result in a positive alcohol test. However, since residual alcohol eliminates from the mouth quickly, a few seconds later, your test results should fall to .000.  

There is a list of medications that could result in false positives:

  • NyQuil and other OTC medications containing alcohol: NyQuil and other cough medicines contain alcohol.
  • Asthma medications: Salmeterol, Albuterol, and budesonide are asthma medications that can cause a positive alcohol test.  
  • Mouthwash: Listerine and similar mouthwash products contain alcohol. Read the label to find an alcohol-free mouthwash.
  • Toothache remedies: Products like Anbesol and Orajel contain alcohol. 
  • Diabetes: People with diabetes can test positive for alcohol even if they did not drink. The process is rather complex. When a person’s body does not produce insulin, glucose accumulates in the bloodstream. When that happens, the person has high blood sugar. In this state, the body burns fat instead of glucose, producing ketones. Ketones develop acetone in a person’s mouth and breath. This will result in a false positive test for alcohol.  

What should you do if you get a false positive on an interlock device?

Suppose the interlock device detects alcohol because you used mouthwash or something similar. In that case, 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 would be best if you kept trying until you get .000 on the device. Since most of the items listed above contain a low amount of alcohol, like mouthwash, the alcohol will dissipate quickly. For example, the interlock testing records will show that you went from .06 to .0000 within minutes. If you were drinking alcohol, it would not dissipate that quickly. 

Another solution is to get a Preliminary Breath Test (PBT).  Immediately go to the nearest police station to get a PBT. Have the officer sign the verification form. 

Another option would be to get an EtG test.  EtG stands for Ethyl Glucuronide.  EtG is a metabolite of alcohol. The presence of EtG in a urine test is a sign that the individual drank alcohol.

An EtG test is a type of alcohol test that can determine whether an individual has recently consumed alcohol, even if they do not currently have any alcohol in their system. This type of test is commonly used in DUI cases and other legal situations where it is important to know whether someone has been drinking recently. There are several types of alcohol tests that can be used in these situations, including breathalyzers, blood tests, and urine tests. However, the EtG test is considered one of the most reliable because it can detect very small amounts of alcohol in the body even several days after consumption.

You can also get a hair follicle test done. Hair follicle tests for alcohol are commonly used to detect recent alcohol consumption. These tests involve analyzing a sample of hair taken from the scalp or other parts of the body, and they can provide accurate results that can help someone make informed decisions about an individual’s alcohol consumption patterns.

One of the main reasons hair follicle tests for alcohol are so effective is that they can accurately measure levels of ethyl glucuronide (EtG), which is a byproduct created when the body processes ethanol, or alcohol. This marker remains in the body for much longer than other types of biomarkers typically looked at in routine drug testing, such as urine and blood.

Because hair follicle tests for alcohol can measure levels of EtG over a long period, they are often used to accurately assess whether someone has been consuming significant amounts of alcohol. These tests can also provide more detailed information about patterns of consumption, such as the amount and frequency with which alcohol is consumed over different periods of time.

If you get a false positive test for alcohol, then it is important to confirm the results by having another test. This can help you ensure the results are accurate and avoid any unnecessary stress or problems.

Contact an Attorney to Discuss Your Case

In conclusion, if someone wants to try NyQuil to explain their positive breath test result, they should know it is unlikely to help them.  They will likely be convicted of a violation, given high certainty that NyQuil is not the cause of the positive test result.

However, there may be viable defenses to false positives and alcohol testing that can produce favorable results. Therefore, if you have been accused of using alcohol when required not to, you will need to consult with an attorney before deciding on the best course of action.   An attorney may challenge the testing methods, sample collections, find mistakes in paperwork, and use other strategies. 

To protect yourself from an interlock violation or probation violation, I would highly recommend avoiding using any substance that contains alcohol. Many alternatives on the market will avoid the problem while testing. NyQuil is an effective way to feel better when sick. However, NyQuil should not be used to defend against a positive breath alcohol test. 

Considering all these risks and potential consequences, it is simply not worth using NyQuil as a defense against an alcohol test while on probation. If you need help managing your alcohol use or avoiding alcohol tests altogether, there are many resources available to help you get back on track and stay out of trouble with the law. So think carefully before using NyQuil in this way.

Contact Czarnecki & Taylor

The best way to protect yourself from an alcohol breath test issue is not by using the NyQuil defense, but by finding a good attorney.  If you have an interlock or probation violation, call an experienced Michigan defense lawyer.  Read how to find a great criminal attorney.

Call (586) 718-2345 to schedule your free initial consultation. We are available 24/7 and have weekend and evening appointments. Or you can contact us online for a prompt response.