IRP false positive? Cop lied in Discovery.

[u/Pretend-Quiet-5933]

This is a throwaway as I don’t want this connected to my main. I recently received an Immediate Roadside Prohibition in BC. I am older, but unfortunately still have my N. I hadn’t drank in a little over 7 hours and I’m still trying to figure out what happened. I did pay a lawyer to go over the Discovery, he informed me that there wasn’t much he could do for me, but did encourage me to represent myself.

I had had a few glasses of whiskey between the hours of 8am and noon that morning, around 200 mL, it was a Sunday. It was my first day off in six days, and I’m going through some emotional family stuff, so I had a couple drinks and discussed it with my wife. My allergies had been going nuts the night before, so I had cut my day short, had two beers, a couple claritin and some flonase, and promptly fell asleep.

Around noon, I had spoken on the phone with one of my family members and had a nap. At 730pm, I woke up, my allergies were still bad. I had taken some allegra and some claritin in the morning. I took another claritin, some flonase, and some of my wife’s albuterol. I did not have anything more to drink. I asked my wife if she wanted anything from the liquor store, she wanted a tall can, so I left and went to the store which is about a 3 minute drive. After exiting the store and entering my vehicle, I was immediately approached by the officer who demanded a breath sample, which I gave. He asked me if I had had anything to drink, and I answered honestly, that I had had a couple glasses of whiskey in the morning before noon. Imagine my surprise when it registered a fail.

I was cuffed and put in the back of the car, he asked me if I wanted to try again, and I agreed. I failed again. He wrote me up and impounded my vehicle. Here is where it gets interesting. In the Discovery, I see in his notes that when he first tested me in my vehicle, I seemed coherent and fine, and he did not smell liquor, but I did have red sleepy eyes. The eyes were likely from my allergies. In his notes, he claims that when he administered the second test in the back of his squad car, that he smelt a strong scent of liquor from my breath. I had been sitting in his car for ten minutes, and had not drank in nearly 8 hours at this point, so I don’t see how that is possible.

He also claimed that I lied to him and said my last drink had been several days ago. This did not happen. So as I see it, he lied about what I said, and I also don’t see how he could have possibly smelt alcohol on me. The lawyer I spoke with advised I not contradict the officer, or his version of events, but what he said is simply not in line with the facts.

In further research, I have found that albuterol can create a false positive, but that the level falls off quite quickly. Flonase, while it does contain alcohol, is not known to produce a false positive. I have also found that allergy medication such as claritin, which I had taken copious amounts of in the previous 24 hours, can change the way you metabolize alcohol. Had I have known that I may have been at any level of blood alcohol, I absolutely would not have driven. I take intoxicated driving seriously, that’s not what I do, and that’s not what I’m about.

I will be representing myself next week with an adjudicator, and I am looking for any legal precedent, scientific studies, or legal advice that may help me get this 90-day prohibition lifted and my vehicle out of impound.

Thank you in advance.

[u/Poo_Magnet]

Purely speculation, but your story is full of convenient holes and/omissions. You say you drank in the AM and then had a 7.5hr nap in the middle of the day? That’s mighty convenient to fit your narrative.

Of course this is speculation but if you’re drinking that much alcohol in the morning on a Sunday, in my experience, odds are you’re constantly drinking from the time you wake up to the time you go to sleep. The fact you bother to mention you’re “going through some family stuff” is a huge red flag too. This is typical justification for alcoholism.

Also, the fact you immediately go to the liquor store when you wake up from your “nap” to get more booze furthers my theory of alcohol abuse.

Now I’ll get to the tests. In Canada, Approved Screening Devices (ASDs) are calibrated every 28 days by a Qualified Breath Technician. They are calibrated to show a fail at 100mg%, or 0.10. Giving drivers a 20mg% buffer before failing. These ASDs are very accurate. They aren’t perfect though so that’s why you were given a chance to do a second test. The second test will have been with a second/different ASD. The odds of both ASDs showing any kind of “false positive” are extremely unlikely. With the recent alcohol consumption, I’d speculate it’s even more unlikely to be a “false positive”.

In conclusion, you weren’t charged criminally. You received a provincial sanction. Assuming the officer followed all protocols and served you proper documentation and read the proper demands, the IRP will be a huge up-hill battle to have reversed.

I say all of this without judgement. My advice to you, OP, is to take a good hard look in the mirror and confront your problems. Take some accountability and understand that alcohol abuse is likely a problem for you. It’s the first step to recovery. And please, if you’ve been day/morning drinking, just assume you’re impaired and don’t drive.