Continuity: CalGuard Feature
Tip 40: Some police services take the position that they don't need to use seals between the simulator housing and the jar. Failure to use and record alphanumeric seals deserves thorough cross-examination. Some police services also take the position that they do not need to follow the CFS 8000C Training Aid Appendix "E" example of an Alcohol Standard Log. Perhaps it is unfortunate that members of the defence Bar have not been as diligent as they could be in cross-examination on the latter systemic error, clearly described in CFS Training.
The CFS Training Aid at page 84 of 238 contains instructions for "Configuring the Alcohol Standard". These instructions include the resetting of a counter (that counts the number of cal. checks - both stand-alone and subject test) and a timer (that counts the number of days since the last "configuring the alcohol standard" sequence).
The instructions at page 84 of the CFS Training Aid, however, also include the completion of a paper alcohol standard log in accordance with Appendix "E".
The CalGuard feature on the Intoxilyzer 8000C appears to make it impossible for a Qualified Technician to violate the ATC rule that "For a simulator with a recirculating system, use shall not exceed fifteen days or 50 calibration checks, whichever occurs first." (p.4 ATC Operational Procedures 2014). The CalGuard feature will not work as intended by the CFS, however, if:
1. The CalGuard software setup is not set to 15 days maximum and 50 checks maximum,
2. The simulator containing the alcohol standard is used with another Intoxilyzer 8000C, 5000C, or approved screening device during the 15 days or 50 calibration checks,
3. There is an unscheduled solution change, or
4. There is tampering.
With respect to 1. above, it is possible for a qualified technician supervisor, with a supervisor password, to alter the 15 days maximum and 50 checks maximum. The "Ontario Canada Operator Guide" (01/09) for the Intoxilyzer 8000C published by the manufacturer states:
Maintenance documents, service logs, and notes are therefore indispensible in identifying the purposes of any password access into 8000C software settings. Some password-protected access is acceptable, some is not. Formal maintenance procedures need to be followed, and audited, so that software settings aren't adjusted without good reason. It is not safe to assume that the maximum days and uses software will never be reset. If anyone has more recent information on this feature from the manufacturer please contact the author at 1-877-273-3322.
With respect to 2. above, it is a simple matter for a qualified technician who needs a simulator containing alcohol standard, for use with another Intoxilyzer 8000C, 5000C, or ASD, to disconnect the quick connects on the tubing between the 8000C and the simulator, move the simulator, use it with the other device, then reconnect, or alternatively connect another simulator containing standard.
The CalGuard feature does not guarantee a one-to-one correspondence between the 8000C and a particular simulator containing a particular bottle of alcohol standard.
Unless a police service uses alcohol standard logs and simulator seals and requires that officers record changes of location and seal numbers in notebbooks and logs, the CalGuard feature is not a reliable method of controlling alcohol standard maximum usage.
With respect to 3. above, the CalGuard feature does not guard against any of the reasons for unscheduled alcohol standard solution changes noted below in items 3, 4, and 5.
During an unscheduled alcohol standard change the qualified technician may be in a hurry, may err, and not take the time to properly configure the alcohol standard or make an alcohol standard log entry. In the 5000C case of R v D at Brampton, the QT received a cal check of 88 immediately prior to the second subject test. On video the QT changed the solution as per item 3, and explained the process to the accused, but he was never seen to make any alcohol standard log entry.
With respect to 4. above, it is hoped that police officers and police employees at detachments in Ontario never tamper with simulators and their contents during the one or two week periods between solution changes and subject tests. However, if our justice system intends to rely heavily on known alcohol standards within wet-bath simulators as indicators of approved instrument reliability, then surely our justice system should expect careful control of continuity through the use of alphanumeric seals.