QUESTION
Is it possible to blow a .04, got an MIP but wasn’t even drinking?
Asked on Mar 03rd, 2013 on Criminal Law - New Jersey
More details to this question:
I was reading online that certain types of gum will trigger these things and I have been chewing orbits cool mint gum, when I enter the officer’s vehicle I had asked him if I could chew it or if I had to spit it out cause I’ve never done this before. He waited a second and told me to spit it out. What I’ve also found out was they have to wait 15-20 minutes after you spit it out so you can release everything that's been in your mouth but after I spit it out he had me blow, is this true? I just want to know how this could happen when I haven't been drinking at all. Can I fight this in court or what am I supposed to do? I can't afford this on my record because I'm currently fighting for custody with my son. Any help will be great! Thank you!
8 ANSWERS
Michael J. Breczinski
I would fight the matter. They have to prove that you were drinking and what reason did they have to give you a test in the first place.
Answered on Mar 12th, 2013 at 9:08 PM
Drug Charges Attorney serving Houston, TX
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Cynthia Henley
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You cannot fight it alone; you need a lawyer to look at the records of the machine, etc.
Answered on Mar 06th, 2013 at 2:24 AM
Criminal Law Attorney serving Los Angeles, CA
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Law Office of Edward J. Blum
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You are right. Machines are highly inaccurate at low levels. A lot of other things can set it off. You should fight this as your license is at stake.
Answered on Mar 06th, 2013 at 2:23 AM
Criminal Law Attorney serving Oakland, CA
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Law Office of Jared C. Winter
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This issue is not whether or not you were drinking the alcohol. The issue is whether or not you possessed alcohol. Minor in Possession. You asked if you can fight this. Sure, you can fight any case. Your chances of success, however, will depend on many factors that only an attorney handling your case can assess. You need a lawyer if you are going to fight your case. If you can't afford to hire a lawyer, you may be eligible for a court appointed attorney (public defender). Your eligibility will depend on (1) your finances and (2) whether or not they have charged minor in possession as a misdemeanor or an infraction. You are not entitled to a court appointed lawyer if you are charged with an infraction.
Answered on Mar 06th, 2013 at 2:23 AM
Adoptions Attorney serving Lansing, MI
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Austin Legal Services, PLC
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Gums could only cause you to test positive on a breath test if it contains alcohol. Mouthwashes have been known to do that although I don't think it would register as high as .04 unless the instrument was malfunctioning or not properly calibrated. They are supposed to wait 15 minutes and observe that you have had nothing in your mouth for that time period before administering the Preliminary Breath Test (PBT). You need to retain the services of an experienced criminal lawyer in your area that handles MIP charges to review the police report and PBT information for any deficiencies that could mitigate or dismiss your case.
Answered on Mar 06th, 2013 at 2:23 AM
You need to hire a DUI specialist, and do it soon.
Answered on Mar 06th, 2013 at 2:13 AM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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If proper procedure was not followed you have a potential defense.
Answered on Mar 06th, 2013 at 2:07 AM
Criminal Defense Attorney serving Englewood Cliffs, NJ
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Savyon Grant, Esq. & Associates
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There is a required 20 min waiting period. You must hire a good attorney.
Answered on Mar 06th, 2013 at 1:34 AM