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EVIDENTIARY BREATH INSTRUMENTS


IN CANADA

Discussion of Approved Instruments, Approved Screening Devices, Approved Drug
Screening Equipment, Alcohol Standards, and Wet-bath Simulators used by Police
in Canada to screen at roadside or to establish "conclusive proof" of excess
Blood Alcohol Concentration

PURPOSE - TO ASSIST DEFENCE LAWYERS IN EXAMINING AND CHALLENGING THE
"RELIABILITY" OF AGING BREATH INSTRUMENTS, PARTICULARLY IN ONTARIO .
"RELIABILITY" IS NOT THE SAME THING AS "ACCURACY" OR THE APPARENT "ACCURACY"
ALLEGED BY POLICE OFFICERS. FOR MANY REASONS, AN INSTRUMENT MAY APPEAR TO BE
"ACCURATE" (AS INDICATED IN THE LIMITED PRINTOUTS FROM THE INSTRUMENT); YET THE
"CONCLUSIVE PROOF" MAY NOT BE "RELIABLE" AND YOUR CLIENT MAY IN FACT BE
INNOCENT. DO YOU UNDERSTAND THE SCIENTIFIC MEANING OF "RELIABILITY" AND THE
DISTINCTION BETWEEN "ACCURACY" AND "RELIABILITY"?



Sample Cross-examinations:



Annual Inspections Done Without Reference to Manufacturer's Specifications



Beer-Lambert Law as Stated in 2013 CFS 8000C Training Aid is Wrong



Instrumental Deviations from Beer-Lambert Law







Sample Submissions:



Technology Does Not Equal Science

This site promotes discussion among defence lawyers in Canada. It deals with
transparency in the quality assurance and quality control measures used by
police respecting evidentiary breath testing equipment. As instruments age, they
require maintenance to ensure that all of their systems function in accordance
with the manufacturer's specifications. Modern approved instruments measure
time, mouth alcohol, breath volume, breath flow, radio frequency interference,
ambient conditions, chemical interferents, and other values, and match them
against internal and external standards. As time passes, systems and sensors get
dirty or unstable, clock batteries weaken, and calibration drifts.



In R. v. St-Onge Lamoureux, the Supreme Court of Canada relied on a paper by
Brian Hodgson, entitled The Validity of Evidential Breath Testing. Hodgson
stated in that review article:



"Any scientific device or technique used to measure breath alcohol concentrations
must address four fundamental issues in its design: accuracy, precision,
reliability and specificity."



Hodgson defines "reliability" as follows:



"Reliability refers to the ability of the instrument to perform over time
without any significant drift in accuracy and precision."

 

Watch the 5000EN video on this page. The Intoxilyzer instrument depicted  was
once a "reliable" evidentiary breath instrument. However, it has not been
properly maintained. Calibration of the internal standards has drifted over
time. As with an aging automobile that has not been properly maintained, this
instrument has become unreliable. The accuracy and precision of either its
breath analysis system or its internal standards has drifted. It requires
multiple start attempts to get it going. Like a car that won't start or a
computer that has crashed, you need to keep trying to get it going. Over time
and many start attempts, sometimes it passes and sometimes it fails its startup
tests. Sometimes it starts after 2 tries, sometimes after 20, sometimes hours
later, and sometimes not at all. Once it is finally going, however, it tends to
"pass" (at least in terms of the screen messages and printouts at time of use)
stand-alone diagnostics, stand-alone cal. checks, stand-alone breath tests, and
internal standards. Watch the video to see an example of just how many times it
takes to get the instrument going.



To be "reliable", an individual evidentiary instrument needs to be "accurate",
"precise", and "specific", at every time and in every place. An instrument that
was reliable many years ago at the factory may not be reliable now. An
instrument that appeared accurate in a laboratory in controlled conditions, may
not be reliable out-in-the-field in a police breath room or a R.I.D.E. mobile
breath testing truck. An individual serial number production instrument may not
match the accuracy, precision, and specificity of the prototype that was
evaluated so many years ago.

 

Although, new instruments submitted for evaluation are not supposed to be
prototypes, it is apparent from reading evaluations that: 1. they receive
manufacturer re-calibration immediately before submission to the evaluation body
and 2. that production models that start being shipped to police a year or two
later after approval by the Minister, have different hardware and firmware.
"Type" approval is very different from "verification" of an individual
production instrument that has been shipped to Canada.



Model numbers sometimes change between evaluation (e.g. 5000 or 8000) and
production (e.g. 5000C or 8000C).



The purpose of a breathalyzer is different from an automobile. A breathalyzer is
a scientific and forensic measuring device. It does not simply "work" or "not
work". We rely on a breathalyzer to measure guilt or innocence. Measurement of
BAC for a forensic purposes is a quantitative analysis. Most defence lawyers
need continuing education on the subject of quantitative analysis used for a
forensic purpose. An "approved instrument" measures quantities, not simply a
pass or fail (a screening device). If you don't understand this distinction you
need to take a course.

 

If the Criminal Code, as amended, authorizes evidentiary searches to obtain a
quantitative analysis for a forensic purpose by means of a machine that is not
capable of a reliable quantitative analysis, then the Criminal Code violates
Charter section 8. If alleged approved instruments, in a particular 
jurisdiction, are, in fact, only screening devices (i.e. capable only of
detecting above 80 or 100, rather than quantitating), then there is massive
systemic failure that will result in innocent convictions.

 

Another aspect of "reliability" has to do with the "measuring interval" of the
instrument. A prototype or out-in-the-field instrument may appear to be accurate
and precise at 100 mg/100mls, but be unreliable below a "lower limit of
quantitation" such as 80, 50, 30, 20, or 12 mg/100mls. To be "quantitative", a
quantitative analysis must be reliable across the measurement range or interval
of the instrument. This issue is particularly problematic in cases where the
indicated BAC is in the 20 to 80 mg/100mls range. Statutory read backs such as
section 320.31(4) (or searches that could result in a statutory read back)  may
therefore be unconstitutional.



Constitutional litigation will be complex where the cause of the
unconstitutionality is systemic, rather than the construction of the
legislation. Defence lawyers need to work together collaboratively to build 
good evidentiary records before raising  these issues.

Unlike an automobile, the purpose of an evidentiary breath testing instrument is
not to simply get from one point to another, i.e. produce a result. A
breathalyzer's purpose is to accurately, precisely, specifically, and reliably
measure a whole variety of parameters associated with the prosecution of an
excess blood alcohol criminal charge or a refusing / failing to provide an
adequate breath sample criminal charge. The instrument does not simply work or
not work. It measures for a forensic science purpose. Calibration of all
measuring systems or exception thresholds (e.g. RFI, interferent, and ambient
environmental conditions) must be in accordance with the manufacturer's
specifications. A simple calibration check of ethyl alcohol calibration at 100
mg/100mls ONLY does not provide a complete control check for ethyl alcohol at
other concentrations because calibration is a curve; it is not linear. A simple
wet-bath or dry gas calibration check DOES NOT constitute a control check for
all the other measuring systems or exception thresholds. That's why regular
complete inspections and maintenance of breath instruments are so essential to
the integrity of  breath testing in Canada. Transparency of documentation of
such inspections and maintenance is essential to the constitutionality of the
Parliamentary scheme - see R. v. St-Onge Lamoureux in the SCC.

 

The "approved instrument", the breathalyzer itself,  is not the only measuring
device used in evidentiary breath testing in Canada. Accessory equipment is
necessary too, and must be inspected and maintained to check calibration and
thresholds for exception messages. Accessory equipment includes simulators and
simulator thermometers. Transparency of documentation of such inspections and
maintenance is also essential to the constitutionality of the legislative scheme
(see R. c. Lopez in QC SC).



The failure of investigating authorities to recognize the forensic purpose
behind quantitative analyses used in Court proceedings  has resulted in
miscarriages of justice in Ontario. The Motherisk Inquiry  is a good example of
a review of what can go wrong when authorities fail to recognize that most
forensic analyses are quantitative rather than qualitative and fail to follow
clear standard operating procedures. CFS scientists have acknowledged during
cross-examination that pre-amendment Criminal Code sections 253(1)(b), 254
"approved instrument", 254(3)(a)(i), 258(1)(c), and 255.1 require quantitative
analysis to determine concentration, rather than the qualitative analysis of a
screening device. CFS scientists have also acknowledged that neither the Alcohol
Test Committee nor the Centre of Forensic Science provide metrological
supervision of police in their use of instruments out-in-the-field. It is
respectfully submitted that if Ontario's approved instruments are not properly
and transparently maintained and operated, under proper metrological
supervision, so that they are capable of providing scientifically reliable
quantitative analysis, then Parliament's breath testing schemes under both Bill
C-2 and Bill C-46 are frustrated.  Parliament cannot have intended such an
unreasonable and unconstitutional application of its scheme.

 

Access to the Blog is Restricted to Members of this Site

duimetrology.com contains a large number of resources for use by Canadian
defence lawyers in defending charges of impaired driving, over 80, and refusal
to blow. Under Bill C-46 we must pay a great deal of attention to the ambient
fail systems and the control check systems of approved instruments. It is
important that lawyers prepare for cross-examination of Qualified Technicians
and government experts.

 

We have created online courses to help defence lawyers. Contact Stephen Biss for
more information.

 





 

 

Please find below, a simple video explanation of the creation of the Intoxilyzer
8000C calibration curve at the factory or during re-calibration by the Canadian
Authorized Service Centre. This video is an excerpt from one of our online
courses for defence lawyers. The calibration of an instrument out-in-the-field
is only as good as the last creation of a calibration curve saved within the
software of the individual instrument. A saved calibration curve is unique to
each individual instrument and each re-calibration of that individual
instrument. It is not the case that one calibration curve exists for all
instruments of an approved type. An understanding of "calibration curve" is
fundamental to any defence lawyer's application for disclosure and any challenge
to the reliability of an instrument. Before you call evidence or conduct a
cross-examination  on issues of disclosure or reliability, consider taking an
online course or doing research about the creation of the calibration curve.



Justice Watt in R. v. Stipo at 109:



"…But the material issue in each case had nothing to do with the instrument’s
performance on other occasions. The material issue in those cases was how the
approved instrument worked when it measured Jackson’s and Gubbins’ blood alcohol
levels.”

 

Reliability of an instrument at time of use is a function, among other things,
of its last calibration curve, probably last established, during annual or other
maintenance. The connection between annual or other maintenance and the creation
of the calibration curve, is essential to an understanding of and proper
application of Canadian case law such as R. v. Stipo, R. v. Vallentgoed, R. v.
Gubbins, R. v. Jackson, and section 320.34 of the amended Criminal Code.



With the greatest of respect to those who hold a contrary view:

 

1. two tests at least 15 minutes apart with good agreement,

 

2. single data point cal. checks  at 100 ± 10 mg/100mls, and



3. automatic self-diagnostics tests (the checks and balances argument)



DO NOT exclude the real possibility that the instrument has, at time of use, an
improperly fitting calibration curve. Two tests of 53 and 57 mg/100mls may both
be inaccurate. The instrument may have dirt or circuitry that has degraded over
time that requires re-calibration - the creation of a better and proper
calibration curve. The last creation of a calibration curve may have been done
negligently using unreliable alcohol standards (traceability) during annual
maintenance. The instrument may have lost, to use Hodgson's words, its ability
"to perform over time, without any significant drift in accuracy and precision"
at points in the measuring interval other than 100 mg/100mls. The instrument may
be "accurate" at 100 mg/100mls but unreliable at 50 or 150 mg/100 mls. The
measurement result may no longer be traceable, as required by the federal
Weights and Measures Act, to the international standards for kilogram and litre.



Continuing education on forensic measurement, including metrological concepts
such as "calibration curve" and "traceability", is essential for defence
lawyers.





© 2021 Allbiss Lawdata Ltd. All rights reserved. This is not a government web
site.

 

 



For more information respecting this database or to report misuse contact:
Allbiss Lawdata Ltd., 303-470 Hensall Circle, Mississauga, Ontario, Canada, L5A
3V4, 905-273-3322. The author and the participants make no representation or
warranty  whatsoever as to the authenticity and reliability of the information
contained herein.  WARNING: All information contained herein is provided  for
the purpose of discussion and peer review only and should not be construed as
legal advice. The authors disclaim any and all liability resulting from reliance
upon such information. You are strongly encouraged to seek professional legal
advice before relying upon any of the information contained herein. Legal advice
should be sought directly from a properly retained lawyer or attorney. 



WARNING: Please do not attempt to use any text, image, or video that you see on
this site in Court. These comments, images, and videos are NOT EVIDENCE. The
Courts will need to hear evidence from a properly qualified expert. The author
is not a scientist. The author is not an expert. These pages exist to promote
discussion among defence lawyers.

 

INTOXILYZER®  IS A REGISTERED TRADEMARK OF CMI, INC. THE INTOXILYZER® 5000C IS
AN "APPROVED INSTRUMENT" IN CANADA.

BREATHALYZER® IS A REGISTERED TRADEMARK OF DRAEGER SAFETY, INC., BREATHALYZER
DIVISION. THE OWNER OF THE TRADEMARK IS ROBERT F. BORKENSTEIN AND DRAEGER
SAFETY, INC. HAS LEASED THE EXCLUSIVE RIGHTS OF USE FROM HIM. THE BREATHALYZER®
900 AND BREATHALYZER® 900A WERE "APPROVED INSTRUMENTS" IN CANADA.

DRUGTEST® 5000 IS ALSO A REGISTERED TRADEMARK OF DRAEGER SAFETY, INC.. DRUGTEST®
5000 IS "APPROVED DRUG SCREENING EQUIPMENT" IN CANADA.

ALCOTEST® IS A REGISTERED TRADEMARK OF DRAEGER SAFETY, INC. THE ALCOTEST® 7410
GLC AND 6810 ARE EACH AN "APPROVED SCREENING DEVICE" IN CANADA.

DATAMASTER®  IS A REGISTERED TRADEMARK OF NATIONAL PATENT ANALYTICAL SYSTEMS,
INC.  THE BAC DATAMASTER® C  IS AN "APPROVED INSTRUMENT" IN CANADA.

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