DUI Defence in Canada: wet-bath simulator alcohol standard

Learn why #duisimulator temperature stability/reliability is essential to Intoxilyzer approved instrument reliability..
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  • Lectures 14
  • Length 2 hours
  • Skill Level Intermediate Level
  • Languages English
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About This Course

Published 1/2015 English

Course Description

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 accuracy 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.

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 evidential breath testing. A lecture has been included discussing the use of dry gas or air gas.

What are the requirements?

  • 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 www.csfs.ca and download the 2013 Recommended Standards of the ATC. Please note that the CSFS has now published a 2014 Update to the Recommended Standards. Please download copies of these 2014 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.

What am I going to get from this course?

  • 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.

What is the target audience?

  • 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.

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Curriculum

Section 1: Use of Wet Bath Simulators in Ontario
03:40

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.

03:12

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

4 questions

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.

Section 2: Simulator Construction and Parts
12:41

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.

3 questions

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?

Section 3: Calibration of a Wet-Bath Simulator in Ontario
13:56

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.

2 questions

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?

Section 4: Demonstration of Alcohol Standard Change and Documentation
02:18

When preparing cross-examination of the alcohol standard change QT, consider their methodology in emptying the old solution.

08:22

When preparing for cross-examination of the alcohol standard QT, consider their methodology in rinsing the simulator jar, opening the new bottle, and re-connecting the jar.

3 questions

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?

Section 5: Connection of the Simulator to the Approved Instrument
09:12

Improper connection of the wet-bath simulator to the approved instrument can damage the sample chamber.

4 questions

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.

Section 6: Connection of the Simulator to a Screening Device
05:11

This video provides a demonstration of the connection of a wet-bath simulator to an ASD such as the Alcotest 7410 in non-recirculating (open) mode.

07:09

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.

4 questions

Defence lawyers need to know and have the published maximums for alcohol standard usage at their fingertips for purposes of cross-examination. You will find these maximums in the ATC Recommendations and the CFS Training Aids.

Section 7: Examination of Simulator Thermometers
16:14

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.

3 questions

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.

Section 8: Protocol for a Stand-alone Calibration Check
06:20

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.

3 questions

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.

Section 9: Altering Cal Checks by Time Adjustment
02:46

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.

3 questions

Defence lawyers need to be vigilant to watch for examples of date and time changes on an Intoxilyzer. Such Esc Esc E sequences may be appropriate at start of shift or prior to the subject tests. However, Esc Esc E sequences can be abused.

Section 10: Alternative Calibration Check Systems
08:14

Wet-bath alcohol standard is not the only method of conducting an external alcohol standard calibration check on an Intoxilyzer 8000C. Many Intoxilyzer 8000s in the United States and other approved instruments in Canada are equipped with a bracket at the rear that holds a canister of ethanol/nitrogen gas. During a cal check, a valve opens, and permits the dry gas to flow into the calibration port on the Intoxilyzer. The system is non-recirculating. Dry gas systems do not require close monitoring of the temperature of a simulator.

10:12

Wet-bath alcohol standard and dry gas alcohol standards are not the only methods of conducting a calibration check on an Intoxilyzer 8000C. Approximately once a year, a technician during re-calibration of the 8000C, will connect a 100 mg/100mls wet bath standard in a simulator to the 8000C and re-configure the Internal Test Procedure (ITP) calibration check system. The instrument during that re-calibration memorizes what 100 mg/100 mls looks like in its electronics. The ITP is automatically checked during every breath test sequence. If it passes then "ITP Passed" is printed on the Intoxilyzer Test Record. Intoxilyzer 5000Cs use a similar system called the "Internal Standards".

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Instructor Biography

Stephen R. Biss, Criminal Defence Lawyer in Mississauga, Ontario, Canada

I am a lawyer with a criminal law and drunk driving defence practice in the Greater Toronto Area. I was called to the Ontario Bar in 1979. Since that time 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. 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 Upper Canada 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.

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