Continuity of the Alcohol Standard
Tip 34: The use of an alcohol standard during evidentiary breath testing in Canada is not mentioned as a condition precedent to section 258(1)(c) but it seems that everyone in the judicial system and the scientific community in Canada assumes it is a condition precedent.
In Ontario we use wet-bath simulators to contain liquid alcohol standard that comes from a 500 ml bottle supplied by a lab.
Police in Ontario use wet-bath alcohol standard with every evidentiary breath test. The alcohol standard is known to be a specific target value (usually 100 mg/100mls but it could be another target value such as 80), because it came from a bottle that is traceable to a lab and the lab has stated a particular target value on the label. The manufacturer (the lab) has probably submitted (ten or twenty) 500 ml bottles from the lot of alcohol standard (hundreds of 500 mls bottles) to the CFS for analysis and probably there exists a Certificate of an Anlyst with respect to that lot. The lot has a number or other code to identify all bottles of the lot. Each of the bottles in the lot display a manufacture date and an expiry date. Each of the bottles displays a notice that the alcohol standard must be used at 34.0 ±.2° C. The bottles are sold to police in boxes of six. The box often contains a copy of the CFS Certificate of an Analyst.
The first question is: How does the qualified technician, who performed the subject tests on your client, know what's in the #duisimulator? It could be water, it could be Vodka, and it could be reliable and traceable alcohol standard. Hopefully it is all of and only the contents of a 500 ml bottle of known, traceable, reliable, alcohol standard of a known lot number.
Additional questions include: What was in the simulator previously? Who put the current contents in the simulator? Did they do it properly? Who used the simulator subsequently? Did they contaminate the contents? How many times did they use it in between? Where have the simulator and contents been in the interim between solution change date and subject test date?
These are all questions related to continuity of evidence. A diligent defence lawyer should search for gaps in that continuity. Too often we assume that just because the subject test qualified technician says that the alcohol standard lot , number, date of solution change, date of expiry, and suitability are such and such then it must be true. Ultimately the huge question is: How does your subject test qualified technician know what was done by other police officers during the period, maybe as much as two weeks, preceding the subject tests?