DUI Defence in Canada: wet-bath simulator alcohol standard
What you'll learn
- 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.
Who this course is for:
- 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.
I am a retired lawyer with a criminal law and drunk driving defence practice in the Greater Toronto Area between 1979 and 2022. I have prosecuted and defended a great number of impaired driving and over 80 charges. I have a special interest in forensic science as it relates to approved instrument breath testing and forensic metrology. I own both evidentiary instruments and screening devices. I present tutorials for defence attorneys at my office in Mississauga, and elsewhere in Ontario and Quebec. I have presented at Law Society of Ontario and other Bar association seminars in Ontario and at a conference in the United States. I know what technical defences are likely to be successful and which ones are not likely to result in acquittal. Most importantly, I have a very good understanding of the limitations of these instruments. I know when they are likely to make mistakes. They are not infallible.