DUI Defence in Canada: wet-bath simulator alcohol standard
- 2.5 hours on-demand video
- 3 downloadable resources
- Full lifetime access
- Access on mobile and TV
- Certificate of Completion
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- Change the alcohol standard in a wet bath simulator
- Identify the important parts of a simulator
- Cross-examine a qualified technician as to the protocol for changing an alcohol standard
- Challenge the inadequacy of alcohol standard change protocol at your local detachment
- Competently consider, evaluate, discuss, and litigate the components of "scientific reliability" considered in R. v. St-Onge Lamoureux that establish a section 258(1)(c) "evidence tending to show" defence.
- Critique the configuration of an alcohol standard by a QT and the continuity practices of a police detachment.
- Gain an understanding of the differences among calibration checks, inspections, and calibrations as described in the ATC Recommended Standards
- Be alert to practices that make simulators unreliable as to temperature stability, alcohol standard spills and leaks, contamination, interferents, condensation, and position.
- Be ready to argue why simulator and simulator thermometer scientific reliability are essential to approved instrument reliability.
- 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 CSFS ATC website and download their Evaluation Standards, Operational Procedures, and Best Practices. Please download copies of these documents for detailed discussion with your expert.
- 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. Whenever this course makes reference to page numbers from the Training Aids the following convention is used, 7-4: page 80 of 238, refers to page 7-4 in the 2009 or 2011 Training Aids and page 80 of 238 in the December 2013 Training Aid.
- If possible, obtain a copy of the Guth 2100 Operator's Manual published by the manufacturer.
- It will also be helpful to have available the disclosure from one or two of your current over 80 cases, including the breath tech notes, the Intoxilyzer® Test Records, the breath room video, and any COBRA® data.
Price includes HST. Enrolment limited to residents of Canada only.
Breathalyzer tests used by police to prove blood alcohol concentration (BAC) of drinking drivers may not always be reliable. How do you find out if the case you are defending is an example of an unreliable breath test? Canadian police need to check the calibration of their Intoxilyzers and other approved instruments. If they do not use reliable accessory equipment or they don't conduct the cal. checks properly then a defence lawyer may be able to argue that the breath test results are not scientifically reliable. If the instrument has not been properly inspected, maintained, and re-calibrated on a regular basis, the test results may not be scientifically reliable.
Wet-bath simulators are used for police calibration checks at time of subject test use and at the factory or factory authorized service centre for inspection, maintenance, and re-calibration.
Videos have been added to the course discussing the essential concepts of "Calibration", "Linearity", and "Traceability". It is important that lawyers learn the meanings of these concepts. It is also important that lawyers discover that a modern breath testing instrument leaves the production line as an empty shell. The hardware of the instrument cannot produce reliable breath testing results. The software of the instrument cannot produce reliable breath testing results. It is only through teaching the instrument - "Calibration" of the hardware and software in the instrument at the factory using reference standards at multiple values (e.g 00, 50, 100, 150, 200) that the new "approved instrument" is capable of generating reliable breath testing results. It is only through such calibration using multiple calibrators - reference standards that results are linearized. Without this learning experience the instrument cannot produce a result across its measuring interval that is "Traceable" to SI units in accordance with section 4(1) of Canada's Weights and Measures Act. Over time the hardware degrades and the software needs to be adjusted to build a new calibration curve that permits "Traceability" to SI units. Uncertainty of Measurement - Unreliability grows over time since last calibration or re-calibration.
This breathalyzer evidential testing course explores the Guth wet-bath simulators used to heat and maintain liquid alcohol standard. Liquid alcohol standard is one of two types of alcohol standard contemplated by the Criminal Code of Canada. An alcohol standard is only a reliable standard if it is used properly. Currently, whenever a qualified technician uses a liquid alcohol standard in Canada, the contents of a 500 ml bottle of a weak solution of ethyl alcohol in distilled water are poured into a simulator jar. The contents of the jar are stirred by the simulator and heated to exactly 34.0 ±.2° C. The simulator is the device that holds the alcohol standard and maintains the standard at an even temperature.
This course explores the use and misuse of simulators as well as their calibration checks, inspection, and calibration. Students will use this information to prepare defence cross-examination of police officers and government experts. The course builds on the Recommendation of the Alcohol Test Committee, the Training Aids published by the Centre of Forensic Sciences, and the author's extensive experience in cross-examining qualified technicians and CFS experts. The course will take 2 to 3 hours to complete. It contains a number of video lectures and quizzes to help students develop their own checklists for preparation of cross-examination. By the end of this course you will have a good understanding of the operation of a wet-bath simulator as used in Canadian Intoxilyzer breath testing. The course also includes an extensive technical discussion of tips for wet-bath simulator litigation.
Some provinces in Western Canada now use dry gas alcohol standard during time of use evidential breath testing. A lecture has been included discussing the use of dry gas, also known as air gas.
- Every defence lawyer in Canada who defends excess blood alcohol (over 80) charges should take this course to learn the basic operation of the accessory equipment used by police during evidentiary breath tests in Canada.
- A Police officer who is a Qualified Technician or who intends to become a Qualified Technician may wish to take this Course to learn to anticipate questions that will be asked during cross-examination.
- This course of study is designed for use by defence lawyers only. It is NOT approved by any of the manufacturers, 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 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. The author is not a forensic expert who gives evidence in Court, but rather a defence lawyer who advocates in Court. Only properly qualified experts can give opinion evidence in Court.
Wet-bath simulators are essential tools during original calibration or re-calibration of an approved instrument. This video explores the procedure used during calibration of an Intoxilyzer 8000 or 8000C at the factory or at the factory authorized service centre. A service technician prepares approximately 5 wet-bath simulators using water (0.000 solution), ethyl alcohol at 40 or 50 mg/100 mls, ethyl alcohol at 100 mg/100 mls, and ethyl alcohol at 150, 200, or 300 mg/100 mls. The instrument is taught the corresponding correct indication for each value so that a calibration curve can be constructed. Indications between the values are extrapolated using the curve. The curve is not-linear - it is a quadratic expression. The curve is different for every 8000 or 8000C and every re-calibration.
Calibration curves, or more correctly the proper calibration curve relative to the memorized calibration curve, can move sideways, up or down, rotate on any axis, or stretch over time. Proper calibration or re-calibration using wet-bath simulators and traceable reference standards at regular calibration intervals is essential to limit drift in accuracy and precision over time.
The author has built a mock-up of an Intoxilyzer® 8000C on his desk to demonstrate the light source, the sample chamber, the IR filter, the detector, the linearizer circuitry, and the digital indication on the instrument. It is important that lawyers understand that two different ratios are at work in the Intoxilyzer® measurement process:
1. the ratio (a curve, varies with concentration) between sample concentration and instrument electrical response
2. the ratio (curve, varies with concentration) between instrument electrical response and the digital indication
The latter ratio is set by establishing a calibration curve during calibration or re-calibration at the factory or the authorized service centre. The instrument indication is "linearized" to the sample concentration. The calibration curve is fixed in the instrument software until the next re-calibration.
The former ratio will change over time as the IR light source ages, the sample chamber gets dirty, the filter degrades, and the circuitry degrades.
The correct calibration curve, over time, is not being used by the instrument, because the instrument is still using the old calibration curve.
In Canada we generally conduct control tests using wet bath simulators such as the Guth 2100, Guth 34C, Guth 10-4D, and Drager Mark IIA to hold and maintain the temperature of a 500 ml alcohol standard at or close to 34 degrees C. The target value of the solution used is generally 100 mg / 100 mls although other solutions are sometimes used by maintenance personnel for calibration and calibration check purposes. Other jurisdictions may use dry gas alcohol standards or the Internal Test Procedure (ITP) for control checks. We may use dry gas in Ontario in the future. ITPs are checked on every stand-alone or automatic 8000C diagnostics check in Ontario, but are not discussed in this course.
Au Canada, nous effectuons généralement des tests de contrôle en utilisant des simulateurs hydro-alcooliques, tels que le Guth 2100, Guth 34C, Guth 10-4D ou le Drager Mark IIA, afin d’assurer que la température de la solution d’alcool-type de 500 ml soit maintenue à ou près de 34 degrés Celsius. La valeur cible de la solution utilisée est généralement de 100mg / 100 ml, bien que le personnel de maintenance utilise parfois d’autres solutions pour effectuer l’étalonnage et la vérification de l’étalonnage. Cette vidéo se veut une explication générale de simulateurs hydro-alcooliques.
version française Alexandre Lafrenière
This quiz is a bit tricky. Don't worry if you don't get the "right" answer. This quiz is designed to make you think about the difference in science in moving from a known to finding out something about an unknown; not the other way around. Too often in Ontario we hear QTs tell us that bad cal. checks mean that something is wrong with the simulator or the tubing rather than the AI. Too often in Ontario we hear Crowns argue that two subject tests with 02 agreement prove everything was working wonderfully even though the QT wasn't using the alcohol standard properly in the first place. You need a reliable simulator used properly to have a reliable alcohol standard pumped into the AI, it's a condition precedent.
A Wet-Bath Simulator is the jar that holds the liquid alcohol standard. The police buy the alcohol standard in 500 ml plastic bottles. The contents of the bottle are poured into the jar. The upper metal housing is screwed to the top of the jar to make a tight seal. The contents are stirred by a propellor that evenly distributes the temperature. The contents are heated to 34 C by an internal heater and kept at that temperature by a thermostat / thermistor. Air is bubbled through the simulator during a calibration check of the approved instrument.
By now you should have some idea of the differences among simulators. Which one uses which thermometer?
While answering this Quiz you should start thinking about a number of questions:
Is it safe to assume that a digital thermometer is more accurate and precise than an old-fashioned mercury thermometer?
If a display or printout displays accuracy and precision to two decimal places does that mean that the last decimal place is reliable?
How do police make sure that their digital thermometers correspond to their mercury thermometers?
An astute defence lawyer needs to pay attention to the service interval, the maintenance documentation, the calibration documentation, and the traceability of various components of the alcohol standard / simulator system. If the function of the wet-bath simulator is to reliably hold the alcohol standard at a very specific temperature then an analysis of function v. malfunction of the alcohol standard / simulator system includes a careful examination of disclosure and cross-examination respecting both the simulator and its thermometer or thermometers.
Now that you know the basic parts of a Guth simulator, think about which items will need to be "calibrated"? Temperature stability is important so it would appear that the system that maintains the temperature at 34.0 +/- .05 C may require adjustment and calibration at regular service intervals. The digital thermometer shouldn't be expected to reliable unless it is checked against a higher precision thermometer, adjusted, and calibrated at regular service intervals. If police are relying on the RS232 electronic thermometer, then it needs to be checked against a higher precision thermometer (not just against the digital or mercury thermometer in the jar), adjusted, and calibrated at regular intervals. If your local police are using a mercury thermometer, for whatever purpose, you need to know its serial number, history of repairs of mercury separation, traceability to NIST, and service intervals. What exactly is the purpose of the NIST mercury thermometer owned by your local detachment? What are its limitations in terms of accuracy, precision, and reliability? Are local police using it beyond its capability?
Your local police service probably doesn't bother to rinse the simulator jar with distilled water after dumping the previous contents. But please think about what that means. If the simulator jar previously contained an unknown substance and water, how can the new contents poured into the jar be expected to be pure after a few days of sittting in the jar? Let's suppose there was Vodka previously in the jar. Couldn't you expect some small amounts of Vodka ethanol to still be in the jar after you dumped it, thus changing the concentration when new contents ? What if the local police service had just been doing a re-calibration of the optical bench of the 8000C (which they shouldn't do) and had been using 300 solution or acetone solution in that same simulator jar?
How does your local police service flag, document, and replace chipped and cracked simulator jars?
Please think about just how easy it is to accidentally connect the simulator outlet to the Intoxilyzer outlet. If you are using quick connectors attached to the simulator that are both female or you are pushing plastic Tygon tube onto both simulator posts you could easily switch the connections and flood the Intoxilyzer.
If a police service maintains proper alcohol standard logs and ASD calibration logs with outgoing seal numbers, incoming seal numbers, and anecdotal information, it is possible to identify patterns of simulator solution behaviour by individual police officers and by the detachment. Small detachments may only possess one simulator and may use that one simulator for both their approved instrument and ASD calibrations or accuracy checks.
A defence lawyer should be curious about the methodology used by their local police service in inspecting the accuracy and precision of simulators and simulator thermometers. Some police services have good protocols respecting simulator service intervals. Others have no quality assurance systems in place. If the analysis of BAC is a measurement with a range of uncertainty, then the extent of that range depends to some extent on the range of uncertainty of measurement for the simulator, the simulator thermometer(s), and the alcohol standard.
Did you know that even a new NIST mercury thermometer can be inaccurate by one or two degrees C as the result of mercury separation during shipping? Mercury can separate and collect at the upper bulb reservoir. Mercury can split into two or more parts in the lower reservoir. Daily inspection of the NIST traceable mercury thermometer is a must.
In Ontario, the "qualified technician" (QT) is expected to run three stand-alone quality assurance (QA) checks at start of shift or at least prior to the first subject test. This lecture provides a simulation of an Esc Esc C stand-alone cal. check using a Guth wet-bath simulator containing alcohol standard. The simulated screen displayed is that of an Intoxilyzer 8000C.
A defence lawyer who is preparing for cross-examination of the Qualified technician (QT), needs to know the nuts-and-bolts of stand-alone Quality Assurance (QA) checks at start of shift: how to run each one, what the QT is looking for, and possible methods of hiding unsuccessful QA checks through destruction or non-retention of embarrassing evidence.
Defence lawyers should always be careful to watch for back-dated documents generated by approved instruments. Of course, police officers should never deliberately generate back-dated documents on an approved instrument. However, if COBRA data is not downloaded and stored on a regular basis and then disclosed, it would be a simple matter for a dishonest policer officer to produce a passed diagnostic, or a passed cal. check, or a passed self-test for any date and time. In this video example, the operator back-dates the Intoxilyzer from the true date of November 15, 2006 at 10:45 a.m. to a false date of October 13, 2006 at 9:30 a.m.. The operator then generates a stand-alone cal. check which automatically produces as test record card showing a passed stand-alone calibration check at 9:32 a.m. on October 13, 2006.