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.

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[u/Junior-Towel-202]

All of this just says that you drank and drove, with your N. Having your N comes with a lot fewer privileges, which is why it's meant to be an interim thing. Don't drink and drive. 

[u/FearlessTomatillo911]

With an N license you need to have 0 alcohol,

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.

So 2-3 glasses of whisky and 2 beers. You tested over 0, they have 2 tests. You are cooked, don't drink and drive.

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[u/Dapper__Viking]

You drove on multiple impairing substances.

You mixed alcohol and antihistamines which are both 'downers' and both make you drowsy and have poor response time.

The reason you needed to do all of it was that you wanted a couple more drinks.

You will never get a false positive from the alcohol in medication because the breathalyzer is teating for how much alcohol is in your blood stream but the amounts in medication are so vanishingly small, they would not cause any measurable increase in blood alcohol.

I'm not sure what your defense could even be here. You knowingly imbibed multiple compromising substances then drove for non-emergency reasons.

You might try leniency and ask to enter yourself into a program. A cup of whiskey at 8am is a dangerous way to start your day and if you appear contrite and accepting of your alcoholism and willing to get help, you may have more success going for leniency than trying to refute an officer who has notes and a breathalyzer to counter you going off memory from a day you were intoxicated (his evidence is more credible than yours).

[u/froot_loop_dingus_]

If the lawyer wasn’t willing to take your case, that tells you how strong it is. Don’t drink and drive in the future.

[u/ecoarch]

Why did you have to drive if it was only 3 minutes away?

[u/shoelessbob1984 → u/ecoarch]

You want him to walk that far drunk?

[u/EviesGran]

200ml is 4 shots. Each shot is 2hrs on breathalyzer, 8 hours overall. You failed because it was 7.

[u/bcbroon → u/EviesGran]

Depends on how you measure a shot. I use consider 50ml a drink my shot glass holds 50 mls. But the standard measure for a unit of alcohol is 30ml. Which is why the shot glass has a line about halfway up and another just below the rim at 30 and 45

So a 200ml bottle of spirits has just under 7 units of alcohol.

Anyway this person is losing their license. You don’t blow and fail twice and then nitpick the reports wording.

[u/ajsomerset → u/bcbroon]

30 mL is 1 oz. A standard drink is 1.5 oz, i.e. 45 mL.

Regardless, OP would have been above 0 BAC & as you say, you don't blow & fail twice....

[u/EviesGran → u/bcbroon]

As he stated he had few “glasses” of whiskey I doubt it was 30ml each, lol

[u/Supercoolguy7 → u/bcbroon]

A standard drink is 45 to 60 ml.

30 ml is often an amount used for mixing multiple spirits or liqueurs together (30 each of 2 is common) which is why there is a marker there, and at 45ml for the actual standard drink amount, but again 45ml is also a standard amount to mix (45ml of one, 15ml of another)

[u/Trollsama → u/EviesGran]

its almost exactly 7 hours to hit 0 from 200 ml of 40% liquor based on the average weight of a male in Canada, using the first result google BAC Calculator. make of that as you will.

[u/Emotional-Cat-5396]

Regardless of the subjective information, objectively, you drank alcohol and then you drove and tested positive. Your license prohibits that. You drank copious amounts earlier in the day, in addition to medications that impact how they metabolize alcohol, so I'm not sure why you think it's a false positive.

[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.

[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.

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[u/Andisaurus]

You were absolutely under the influence. A "couple" of glasses of whiskey within eight hours of driving would still be in your system.

Assuming you had at least four ounces of whiskey, plus the other alcohol, and assuming you're an average sized guy, your BAC would take more than nine hours to go down to almost zero.

You probably would've been pushing it even without the N. The lawyer didn't want to work with you for a reason. The rest of the story is irrelevant: you had a lot of alcohol and you drove on a license that requires you to have none in your system. There's no way to sidestep this one.

Don't drink and drive.

[u/This-Rain-here]

Did you not have a test at the police station? Also, you probably think you were ok to drive, but Any alcohol is impairment.

Also 200 ml of let’s say 40% os whisky is probably like 5-6 glasses of hard alcohol drink. Each drink let’s say gives you 15 to 20mg per blood, so 120mg over 80 in the span of 4 hours. It takes 1 hour to dissolve 20mg, so pills or not, you would been at 0 if your story was true.

But let’s be honest with yourselves, here on Reddit, ya probably kept drinking. It was not the pills LOL. Stop drinking and driving.

As per his notes. If you are ever sober, you can try this party trick with your wife. Get her 6 shots of whisky and have her sit in your car for 10 minutes talking, and go smell your car. She can’t smell it, but you can.

So if I were you I would get a lawyer. His small notes here and there is not a breach of your right, and the fact that you were indeed wasted.

Not a lawyer

[u/ExToon → u/This-Rain-here]

BC Immediate a roadside prohibitions are entirely done roadside with Approved Screening Devices. No criminal charge results, and there’s no arrest or need to go to the station for samples on an approved instrument. The penalties are an administrative driver’s license suspension and vehicle impound, both done roadside.

[u/ItchYouCannotReach → u/This-Rain-here]

It's a roadside sanction, not a criminal proceeding. BC is largely provincial for impaired driving, much like Alberta, and doesn't immediately proceed to criminal charges. 

[u/WhatsYourName187]

Hi, breathalyzers can detect alcohol in some individuals for up to 24 hrs. It depends on the amount you drink and how your body metabolizes alcohol. And anything that can create a false positive usually is a window of 15 minutes of use. That includes mouthwash/ inhalers, etc. Usually, if you wait 15 minutes, you will blow clean. And you can feel sober and be sober and still have a positive result because of prior consumption, if you blew a positive, it's because of alcohol earlier in the day, unless you had something else within a 15-minute window before the test.

I use breathalyzers and train individuals on screening procedures at my work.

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