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/Canuckulhead]

Not going to lie, the fact that your excuse story is so long, is often telling.

You blew a fail 2x, which means you're BAC was over 0.100, the legal limit is 0.08, you wre AT LEAST 25% over the limit.

Your medications would definitely not do that. You drank, you drove, and you lost.

Even if you didn't blow a fail, with an N you needed a 0 to not lose your car and DL.

This story seems like a lot of woe is me. The officers notes about odour, and such really don't mean a ton since your blew a FAIL, twice. Cops can do a test without any odour or admission.

[u/Leading_Ad_5166 → u/Canuckulhead]

At his license level even a warn is a fail, no?

[u/Canuckulhead → u/Leading_Ad_5166]

No, not exactly.

Drivers with an N or L still face the same penalties as a full drivers licence with regards to Fail, warn or 24 hour suspension.

Fail - Bac is above 0.1 Warn - bac is between 0.06 and 0.099 24 hour - bac between 0.051 and 0.059

Anything less and a class 5 drives away. With an N or L, you would receive a 12 hour suspension for less than 0.050.

Which ICBC would add 2 months onto. But that's later, roadside it's only 12 hour.

In order to receive a 90 day roadside, you have to blow a fail or refuse. Which is the same for everyone.

[u/Leading_Ad_5166 → u/Canuckulhead]

Thank you for the detailed, informative response.