Two problems: DOL requires that the IID installer certify that you have not had any positive tests for the four months prior to removal of the device. It sounds like you have 6 months left so this should not be an issue with DOL.
It is very possible that the IID company will notify the court of the violation (regardless of what they told you). If they do, and the court finds that this was a violation of your suspended sentence, you can end up getting any or all of the jail time suspended in your case.
I have to be honest. I have been doing this a long time and am very skeptical when someone says they blew positive due to something other than drinking. The judge will be just as suspicious. This does not mean you can't convince the judge this is what happened, but you should get together with your attorney and start figuring out what kind of evidence you can present to support your reasons for the .05 blow.
I agree with the previous answer because the vast majority of cases of IID failures result from people who have been drinking and claim they used mouthwash or NyQuil. The judge will be more skeptical than me. That being said, I successfully defended a woman who's at-home breath tester registered a .05 when she used hair spray nearby. Stuff happens. If the Court wants to sanction you, I would recommend that you retain an expert witness who can testify about the science that would cause a false positive like this. The State won't be able to contest the science, and the Judge might be more likely to give you the benefit of the doubt. I hope nothing comes of it. Good luck!
You need to hire an attorney or use the one you have and get an expert to show that it is possible to get such a positive result with the use of mouthwash because no one is believing it.
IID's register all kinds of false positives. While your judge will be skeptical, the evidence shows that he/she should not be. Hire a lawyer that can educate the Judge on iid failure. If it happens again, rinse your mouth to remove mouth alcohol and blow into the machine again so that it can be shown that you immediately passed the test and further support the conclusion that it was machine error.
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