Defense of a DUI Breathalyzer Charge by an Ontario Attorney
- 2.5 hours on-demand video
- 4 articles
- 6 downloadable resources
- Full lifetime access
- Access on mobile and TV
- Certificate of Completion
Get your team access to 4,000+ top Udemy courses anytime, anywhere.Try Udemy for Business
- Build a comprehensive DUI excess alcohol defense, compatible with Bill C-46 (coming in 2018), based on improper operation of the instrument's ambient fail system or the control check system, both of which compromise the scientific reliability of the measurement result pursuant to R. v. Lam.
- Memorize the protocols and sequences that should be followed before and during an Intoxilyzer® 8000C evidentiary breath test in Ontario
- Improve criminal law litigation skills related to over 80 charges
- Prepare for cross-examinations of the qualified technician and CFS expert
- Cross-examine a qualified technician as to the protocol for conducting an evidentiary breath test
- Cross-examine a CFS expert on the limitations of automatic systems on approved instruments
- "Those two courses are amazingly thorough and cover the most basic requirements from telephone call through interview and beyond to the skills required to do even a basic DUI case with comfort and back up support." (Ray Kuszelewski, Halifax, NS)
- Before taking this course you should obtain the most recent version of the Recommended Standards of the Alcohol Test Committee of the Canadian Society of Forensic Science. Please visit the CFS web site and download the most recent Operational Procedures, Best Practices, and Equipment Evaluation Standards. or Best Practices of the ATC.
- In Ontario the most important documents for use in cross-examination of qualified technicians are the Intoxilyzer® 8000C Training Aids published by the Centre of Forensic Sciences in Toronto. You can obtain a copy of the current Training Aid by writing directly to the CFS Toxicology Section usually in the context of a disclosure request where you cc the Crown. Earlier versions of the Training Aid will be useful for cross-examining a breath tech who was trained several years ago.
Scientific reliability of the measurement result is the only reason why Canada's per se (we call it "over 80") drinking and driving law, is saved by Charter section1, and therefore constitutional. According to the Supreme Court of Canada, in R. v. St-Onge Lamoureux, that was Parliament's purpose in enacting the presumptions in section 258(1)(c) - to give the results a weight consistent with their scientific value:
"According to the scientific evidence on which Parliament relied, if the instrument functions properly and all the relevant procedures are followed, the results should be reliable. It is therefore logical to provide that the
results can be challenged only by raising problems that can be objectively identified and that relate to possible deficiencies in the instrument itself or in the procedure followed in operating it." (paragraph 38)
This course familiarizes defence lawyers in Ontario, Canada with the most important protocols used by qualified technicians in over 80 mg / 100 mls blood alcohol concentration cases. If your client has been charged with excess alcohol driving or care or control you need to know how breathalyzers work. In preparation for cross-examination of breath techs and government forensic scientists defense attorneys need to know Henry's Law and its application to evidentiary breath testing equipment, particularly the Intoxilyzer® 8000C approved instrument used in Ontario. This course examines the Quality Assurance (QA) and Quality Control (QC) measures documentation kept by provincial and municipal police. The course has video lectures accompanied by Quiz questions that will help teach you how to prepare for Court. Any defence lawyer who is defending an over 80 charge in Ontario should take this course.
Price includes HST.
- This course of study is designed for use by defence lawyers only. It is NOT approved by the manufacturer, by the Alcohol Test Committee, by the Centre of Forensic Sciences, police services, or any government authority. Should this course of study be used by anyone other than a defence lawyer in Ontario you run the risk that the information contained herein may be unacceptable for your purposes. Please note that the public should NOT attempt to use any of the contents of this course as evidence in Court.
- Colleagues who are members of local Crown Attorney's Offices are welcome to make use of this course. Basic knowledge of the operation of an Intoxilyzer® 8000C is essential for both examination-in-chief and cross-examination of a qualified technician in Ontario.
- Police officers who are or who intend to become qualified technicians are welcome to make use of this course. This course may help you to anticipate questions that will be asked by defence lawyers. Please note that much of the content of this course may contradict your training by the Centre of Forensic Sciences or police training.
The process of getting a measurement result on a breathalyzer is more important than the result. Without knowing the process, both what it should be and what was actually done, you can't have any assurance as to the scientific reliability of the measurement result. Scientific reliability of the process is the only reason why Criminal Code section 258(1)(c) is not unconstitutional. When Bill C-46 goes into force in 2018, the constitutionality of the new section will be challenged. Scientific reliability of the process will once again be considered as a valid Parliamentary purpose. Lawyers need to learn the whole process of evidential breath testing.
Approved screening devices (ASDs) in Ontario use a fuel cell system for a quick single analysis of a breath sample. After the single electrochemical analysis, they need time to reset to zero. Their calibration (accuracy check) is checked infrequently.
Approved instruments in Ontario, including the Intoxilyzer® 8000C, use an infra red (IR) system of analysis. Inside the 8000C, IR light is emitted and sent through a sample chamber containing the breath provided by the subject. Some IR light is absorbed at certain wavelenghs if ethanol is present. The IR light then passes through filters allegedly specific to IR light at about 3.4 and 9.4 microns wavelength. The filtered IR light is then detected producing electrical signals. Numbers are attached to the electrical signals. Many readings can be sampled as the individual blows into the mouthpiece. This permits an analysis of the slope of blood alcohol concentration over the seconds of the blow. Mouth alcohol can sometimes be identified and flagged as an error. IR instruments such as the 8000C have additional automatic systems that may flag as errors, Radio Frequency Interferance (RFI), an interferent (such as acetone on breath), or ambient alcohol floating in the breath room air. Approved instruments are used in Ontario together with wet-bath simulators containing alcohol standard. During a normal breath testing sequence the operator can observe how closely the 8000C reads (90 to 110 mg/100mls) as compared to the known alcohol standard (allegedly 100 mgs/100mls).
This lecture provides an overview of what the defence bar generally, and a particular defence lawyer specifically, need to know in order to make full answer and defence on the issue of scientific reliability of an approved instrument. The CFS will concede that Scientific Method applies to evidentiary breath testing. Assuming that scientific method is at the centre of St-Onge Lamoureux scientific reliability, then the defence needs to fully know the apparatus and protocol, as it is supposed to function, and as it functioned with the client.
These questions are designed to provoke discussion. Do your best to answer. Don't worry if your answers don't inspire confidence in evidentiary breath testing in Ontario. Maybe something is wrong with the deep lung air paradigm we use in Ontario. Start a discussion. Hint: Search on the Internet for another paradigm suggested by Dr. Hlstala in Washington.
This Quiz is much more serious. Hopefully you've already learned a fair bit about the application of Henry's Law in a simulator. If the temperature of the alcohol standard isn't right then the alcohol standard is not a good alcohol standard. A calibration check using a bad alcohol standard is no calibration check at all. Reliability of the system has been compromised. Think through all the other ways the system could be compromised.
This is another Quiz designed to get you thinking before you view the lecture. Try the Quiz now, you can always go back again later. You may need to check the 2014 Operational Procedures of the Alcohol Test Committee. You need to know this stuff inside-out to catch the breath tech in an error.The concepts raised in this Quiz will provide you with fruitful cross-examination. Why not start a discussion about it?
These quiz questions reveal other fruitful areas for cross-examination. If you don't understand recirculating and non-recirculating modes don't feel bad - sometimes experienced breath techs get confused. Imagine what you can do in cross-examination to a breath tech who doesn't understand that maximum alcohol standard usage for non-recirculating systems is significantly less than for recirculating. Let's suppose a small detachment has only two working simulators - one attached to the Intoxilyzer and one used for ASD calibration. If one of those simulators goes out for repair it might be tempting for a breath tech to use the good simulator on the ASD first (non-recirculating) and on the Intoxilyzer second (recirculating). If the breath tech thinks they can use the solution 50 times they are most definitely wrong. Visit my office sometime and I'll show you the difference.Alcohol standard continuity is a huge potential area for disclosure requests and cross-examination. You're the lawyer, you know all about continuity of evidence in other settings, what could possibly go wrong with the continuity of a liquid in an unsealed jar between Sunday and Friday? What disclosure do you need? Look at the Discussion area.
Sometime I would like you to take a hands-on Intoxilyzer course in my office. That would give me a chance to show you each of the ordinary Esc Esc sequences. I also invite you to carefully read the Intoxilyzer Training Aid of December 2013. It has a lot of material on Esc Esc sequences. Note that you can alter dates on Intoxilyzer Test Records using Esc Esc commands. Please note that in addition to the ordinary Esc Esc level 1 commands there is a hidden level 2 set of Esc Esc commands accessible only with the correct password. The password isn't very complex but it permits a competent or not so competent police officer to change basic settings on the 8000C. That could be dangerous and affect the whole calibration of the machine. I'll save advanced Esc Esc commands for another course for the high achievers.
Understanding which Esc Esc commands produce paper records and which ones don't is essential in COBRA disclosure litigation. The Crown will often take the position that if you've got all 3 QA check test records you have all the QA information at start of shift. Maybe a test record card that showed a failed diagnostics test wasn't disclosed because it wasn't kept but it was printed. Maybe there is information about the alcohol standard expiry date saved in COBRA but not printed, as argued by the Crown, on the test record. You need to know this stuff cold and you need to watch THE WHOLE VIDEO to look for discarded test cards. If there is something you don't understand here please contact me or start a discussion.
You've watched endless hours of clients blowing into Intoxilyzers. But can you tell the difference by pump sounds alone between an air blank and a calibration check? Do you know the sounds of diagnostics checks? Unfortunately camera angles and screen resolution are usually very poor. If you hear a strange tone or see the arresting officer texting you need to know the particular part of the ACABA sequence that is running. You need to know that so you can ask intelligent questions of your colleagues and expert and impress your client. At what point in the ACABA sequence did the breath tech look at the simulator temperature display? At what point in the sequence did the breath tech leave the room, turn on the fan, clean her hands with GOJO, receive a text, or answer an inquiry? This level of competence requires familiarity with normal Intoxilyzer sequences.
Sometime, please take my hands-on Intoxilyzer course for defence lawyers and you'll have an opportunity to blow into an Intoxilyzer with a small amount of alcohol in your mouth. Better still bring your true BAC up to about 50 mg/100mls and try blowing into an Intoxilyzer with a bit of mouth alcohol or bread in the mouth. Some of the time you'll blow your true BAC, some of the time you'll generate an "Invalid Sample" error or exception, and some of the time you'll blow a very significant false positive. If you try it a few times you'll eventually get duplicate tests with 02 agreement. The only safe way to prevent mouth alcohol bias is to follow the international literature - strict 15 minute observation and deprivation period.