• Stephen Biss

Are police officers tempted to record 34.00?

Tip 21: A CFS scientist has acknowledged police sometimes are tempted to record 34.0.

Evidence of a CFS scientist, Dr. Langille, April 10, 2013, R v KG at Kitchener, transcript page 10:

"As I indicated from my own personal experience, this Simulator and the earlier Simulators keep their temperatures very, very stably which is why we always train and insist that the breath technicians look at the temperature because after six to eight months of seeing the same numbers, it’s tempting just to rely on that fact. And occasionally when a device malfunctions, then they will put down, especially in the old days with the 5000C, they would put down that the temperature was 34.0 and then get a very low or a very high calibration check and then realize, oh, the temperature isn’t what it was and then they would have to explain that."

Should police officers rely on the fact that something is usually true rather than relying on what they actually observe? Should police officers bother to observe, if they already expect something is usually true, i.e. a temperature that averages 34.0C?

There was a case on the Intoxilyzer 5000C where police obtained bizarre low cal. checks but unfortunately recorded temperatures close to 34.0C. This meant that the low cal. checks could not be explained away as the result of a simulator that had not yet been brought up to 34.0C (Henry's Law).

This is Exhibit 52E R v BCPS Orangeville during cross-examination of CFS expert. This Exhibit was an example from another jurisdiction and shows cal check of 043 (target 100) and temperature 34.1C :

#3400 #tip

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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.