Reliability: Operator Induced Error
Tip 44: I respectfully suggest that a qualified technician can disable the air blank, ambient fail, and zero adjust systems in the AI such that #duisimulator cal checks and subject breath tests are not reliable on an Intoxilyzer® 8000C.
It is respectfully submitted that Operator Error can induce a malfunction such that the source of air for the air blank does not reflect the ambient conditions around the approved instrument. If the QT places the entrance to the breath tube around the right side and under the AI then the ambient air read by the instrument is the air under the AI rather than the air around the AI. This bad practice not only limits breath room air, around the instrument, from entering the instrument, but also exposes the air blank / ambient fail system to whatever may have been spilled on the desk.
Another possible breath tube entrance position during air blanks, that I respectfully submit is improper, is around the front of the instrument and under the keyboard. Other improper positions are on the keyboard or in the operator's lap.
When Ontario was using 5000Cs I observed one breath room video where the much shorter breath tube was placed in the operator's crotch area during air blanks.
I respectfully submit that the proper position for the breath tube entance during air blanks is in the cradle supplied by the manufacturer. Air from the breath room can easily enter the breath tube when it is in the cradle at the top of the instrument. Any Intoxilyzer® 8000 or 8000C has a smaller sample chamber, smaller internal tubing, and appears to have a much weaker vacuum created by the pump than models 5000 or 5000C. It is therefore more important on the 8000 or 8000C that ambient air can easily enter the instrument during air blanks.
Based on the evidence of the CFS scientist in R. v. O. and a CFS affidavit in another case, I anticipate that the Crown will take the position that: "As long as the tube is not blocked in any way, the instrument will take an accurate reading of the room air at the time of testing. The positioning of the air tube at the time of the air blank test does not impact the reliability of the air blank test result." (R. v. O. decision by Justice Tuck-Jackson, paragraph 50). With respect, I disagree with the opinion evidence on which that finding was made. I urge scientists in private practice and goverment scientists to explore these positions experimentally.
A defence lawyer should wonder: If position of the tube has no effect on air blanks and ambient fails, why a police officer would ever engage in this practice? Why would a police officer not leave the tube in the manufacturer's cradle? I infer that some police QTs simply want to avoid ambient fails and purge fails and so they effectively disable the manufacturer's design.
In R. v. W. at Hamilton, the accused blew 218/213. He had 6 priors. Upon a Judicial Pre-Trial followed by a guilty plea to impaired and joint submission, he received 90 days in jail intermittent, an 18 month driving prohibition, and 12 months probation. There were several technical issues related to the over 80, considered by the Crown and the defence leading to this joint submission resolution. One of these issues had to do with the breath room video which displayed during the air blanks:
1. Huge movement of papers on the cork board behind the AI and sounds indicating the operation of a very large fan in the breath room.
2. Positioning of the breath tube entrance around the right side and under the AI.
It seemed apparent to the author of this blog that the QT was taking pro-active steps to avoid an ambient fail from ethyl alcohol emanating from the breath and body of Mr. W.. With the greatest of respect to the QT, I take the position that this was Operator Error that induced Malfunction. The actions of the QT made it impossible for the AI's air blank, ambient fail, and zero adjust systems to function as they were intended by the manufacturer. This was an example of bad practice.
Other QTs follow good practice. In R. v. D. at Milton, the accused blew 303/265/277. During the course of the subject tests there were 3 ambient fails. The QT each time followed protocol in accordance with the 2013 Training Aid page 136 of 238. On each occasion the QT relocated the subject away from the breath tube, removed the mouthpiece, ventilated the room, and re-commenced testing of the subject. The re-location of the subject included a direction to the subject, that he stand far away from the AI, at the entrance door to the breath room. The QT did not interfere with the operation of the AI's air blank, ambient fail, or zero adjust systems. He accepted each Ambient Fail as normal function of the instrument in accordance with the manufacturer's design. The QT did not engage in Operator Error and the instrument did not Malfunction. The Accused entered a guilty plea and acknowledged breath readings in excess of the statutory aggravating range. He received a $1500 fine for a first offence with a 4 month Stream A absolute prohibition by the Court.
The point is that following proper protocol results in reliable breath testing, that results, often, in guilty pleas and sentences that fit the crime. On the other hand, when QTs induce malfunction, the results will be challenged by the defence and may result in what the police consider an unfair result. Residents of Ontario should insist on good practice, not bad practice, so that guilty people are convicted and innocent persons are acquitted. If the scientific community, after proper experimentation, disagrees with my analysis, then I look forward to being corrected.
Why not take an online course that helps you, as a defence lawyer, to understand these concepts?
Intoxilyzer® 8000C Sequences
Wet-Bath Simulator Use and Reliability
These courses are NOT authorized by the manufacturer or any government authority.