• Stephen Biss

Continuity: From the Box

Tip 37: Defence lawyers need to study the video - does the qualified technician take a bottle of alcohol standard out of a box in the breath room and use that bottle to identify the alcohol standard already in the #duisimulator?

At least one Qualified Technician has been observed, appearing to identify, the solution inside the #duisimulator, previously changed by another officer, by obtaining and examining a different full bottle from a box inside a cabinet in the breath room. The information that any qualified technician needs, to ascertain the suitability of the alcohol standard being used with the subject tests, has to do with the alcohol standard that is actually contained in the simulator that he or she is using for the subject tests. That information has to originate with the qualified technician who last changed the alcohol standard solution in the simulator , not the QT conducting the subject tests. The QT on the subject tests, should not simply be guessing, that the alcohol standard, in the simulator, is of the same lot number as that in the box in the closet. There may be multiple boxes in use, stored in different parts of the breath room or elsewhere in the detachment.

The breath room video was filed as exhibit 9 in a case called R. v. W at Milton. The case is reported at 2013 ONCJ 407. The video depicts the QT reaching into a cabinet, locating a box of alcohol standard, withdrawing a random bottle, and reading the label on camera. This is a totally inadequate method of identifying the alcohol standard. Fortunately for the Crown and not for the client, in the particular case, the QT had a second method to identify the particulars of the alcohol standard.

The Court's review of the evidence in R. v. W., at Milton, included the following (the officer's name has been replaced with an X):

[38] Mr. Biss then suggested to him that, in this particular case, he did not get the information from the police seal on the 8000C because the video shows him reaching into a cupboard in the breath room and pulling a box out of the cupboard, then pulling out a bottle and reading the alcohol standard number on the video from that bottle which he held in his hand. P.C. X replied as follows: I actually pulled that bottle off for reference. I did take it off, so – to make sure that – and it’s nothing to do with the number. It’s just to make sure I get the Cal Wave solution, 500 millilitres. It’s just like a, a template. It just happens to be one of the six bottles in the box. And that bottle coincidentally is consistent with the bottle or the solution that was put into the simulator.

[39] Both Crown counsel and Mr. Biss then agreed to play the breath room video in the courtroom for the benefit of the Court and P.C. X. After the video had shown P.C. X going to the cupboard and getting a bottle out of the cupboard just as Mr. Biss had questioned him, Mr. Biss paused the video and asked if the officer would agree that indeed the way in which he had identified the lot number was not from the seal on the 8000C, but rather by taking that bottle out of the box in the cupboard and reading right from it. P.C. X said that he did not agree with Mr. Biss and he said he could explain the situation if Mr. Biss would like him to do so. He said: As you look there, I was looking at the simulator when I turned it on. The seal is facing me. I can see what’s on it. There is a Cal wave on the seal. It also has the lot number, et cetera, et cetera, with the seal number which I read off. Then when I grabbed the bottle out of the box, it’s the same bottle with the same information. So when I read it out loud, I had that in front of me. The information is the same.

[40] In answer to Mr. Biss’s next question, he said that the expiry date of the solution is either on the seal and/or on the bottle, or both. Mr. Biss suggested again that he had obtained that information by looking at the bottle rather than by looking at the seal. P.C. X answered by saying that he believed it was on the seal, but his point was that if it was on the bottle and the seal lot number was the same as the bottle, then obviously it is the same expiry date for both. He said that was just common knowledge for him.

Defence lawyers need to diligently pursue the issue of the method used by the local police service to control alcohol standard continuity between solution change and second subject test. Please note that the method used by the individual officer or group of officers may deviate from the policies of the police service. Local Standard Operating Procedures and deviations from those procedures are therefore important areas of disclosure and cross-examination.

#continuity #box #tip


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