• Stephen Biss

Reliability: 5000 64- in 2015 Stand-alone Sequences & Subject Tests

This is the same Intoxilyzer 5000 64- series shown in the blog entries of June 16, 17, 18, and 19, 2015. These videos were captured on June 22, 2015. This instrument has not been maintained, serviced, or repaired since it was purchased well-used many years ago, except for lubrication of the printer by the author.

These videos display an instrument that passes all stand-alone tests (Esc Esc D, Esc Esc C, Esc Esc B) at start of shift and produces two groups of ACABA subject test sequences with results in good agreement.

If these printed test records are viewed in isolation, and if a suitable 100 target alcohol standard was used, then this instrument is in proper working order and its results are reliable according to the Alcohol Test Committee's Position Paper. As a result of that paper, generally speaking, it is currently the position of some Ontario prosecutors and government scientists, that other records and data, including information concerning traceability, inspection, and maintenance of approved instruments and accessory equipment, are irrelevant to any assessment of reliability. The Supreme Court of Canada took a very different approach in R. v. St-Onge Lamoureux, concluding that reliability is something more than appearance of reliability. Operator error, according to the Supreme Court of Canada, can include lack of maintenance. It appears that the Crown is attempting to re-litigate the issue: Does lack of maintenance compromise reliability?

The above hypothesis proposed by the ATC Position Paper is not supported by scientific literature outside the ATC. Note the lack of external references in the paper. The ATC hypothesis needs to be tested like all allegedly scientific hypotheses. Intuitively it makes no sense. My comments, however, are only discussion. Scientists in private practice need to test this hypothesis and communicate their findings. We defence lawyers, using proper expert evidence, need to challenge the Position Paper hypothesis and encourage respect for the decision of the Supreme Court of Canada in St-Onge Lamoureux.

WARNING: These videos and this discussion are provided for the assistance of defence lawyers. This is NOT EVIDENCE and cannot be used in Court. You need to hire an expert witness. The author is NOT AN EXPERT WITNESS. Government scientists will no doubt disagree with much of what you read here. I welcome their input, discussion, and correction.

The test records shown at the end of each video indicate flawless operation. These videos taken on June 22, 2015 appear to depict an instrument that functions well except for the malfunctioning simulator re-circulating system.

Esc Esc D Stand-alone Diagnostic at Start of Shift (2 sequences):

Esc Esc C Stand-alone Calibration Check at Start of Shift (group of 5 cal. checks):

Esc Esc B Stand-alone Self-test by Operator (tombstone data required on this instrument):

Two ACABA Sequences 15 minutes apart - subject with no BAC

Two ACABA Sequences 15 minutes apart - subject blows through simulator with unknown target value alcohol standard

What is missing from these test records and videos? If one has no knowledge of the history of this instrument the following important information is missing from an assessment of reliability:

1. The Diagnostics failures of 2009 depicted in the blog entry for June 16, 2015 that showed an instrument that could not pass cold-start diagnostics or stand-alone diagnostics without shaking and hitting the instrument.

2. The susceptibility of this instrument to radio frequency interference shown in the blog entry for June 18, 2015.

3. The fact that the case of this instrument has been opened up several times by an unauthorized person, a lawyer, for purposes of lubrication of the printer.

What is missing from the printed test records viewed on their own without video?

1. These close-up videos demonstrate that the simulator is not hooked-up in re-circulating mode and that the re-circulation of alcohol standard does not operate on this old instrument. There is no indication of this problem on the test card. Whether the instrument/simulator combination is in non-re-circulating or re-circulating mode affects maximum usage of the alcohol standard.

What is missing if the instrument is not inspected annually to ensure that it is operating in accordance with manufacturer's specifications?

1. What is the threshold value of ambient air for this particular aging instrument that produces an ambient fail? Is it 10 mg/100mls, 19 mg/100mls, or 50 mg/100mls? Has the instrument's ambient fail system threshold ever been checked and adjusted and checked, "calibrated", since manufacture, against a known standard in a calibration laboratory? Note the technique used in the blog of June 19, 2015 which depicts this instrument not triggering "ambient fail" with ambient air of 50 mg/100mls.

2. What is the reliability of this particular aging instrument for detecting interferents, such as acetone, on the breath of a test subject and then flagging that interferent at a particular threshold? Has the particular instrument annually had this threshold checked and adjusted and checked through proper "calibration" against known external standards in a calibration laboratory? Note the blog entry of April 1, 2015 respecting the serious problems in Ontario with knowledge and understanding of the bandwidth of filters in the 5000C and 8000C.

3. What is the threshold on this particular aging instrument for detection of mouth alcohol? Mouth alcohol detection systems are never 100% reliable at the best of times, but if this system is not annually inspected against known standards in a calibration lab (some police use mouthwash) then this automatic system has no reliability.

4. What is the threshold on this particular aging instrument for detection of RFI? Has the instrument's circuitry been upgraded and calibrated at a calibration laboratory against the manufacturer's current specifications for RFI threshold? Has the instrument's RFI detection system been compromised by opening and closing the instrument's case by unauthorized persons such that the "Faraday shield" isn't a shield any more?

5. What is the stability of the processor; does the instrument have a steady DVM? That requirement is essential on a 5000C. The question is, has the automatic system that checks that stability been annually inspected?

What is missing if the internal standards (or ITPs) are not verified against external standards during annual inspection?

1. If the Crown elects to rely on the statement "internal standards passed" (5000C) or "ITP Passed" (8000C) on the printed Intoxilyzer Test Record and files the test record as an exhibit under Code s. 258(1)(f.1), how can a Court apply the probative value attached by Parliament to such a filing, unless those systems have been properly maintained?

2. As depicted in the blog entries of June 2, 3, and 4, the internal standards (or ITPs) can shift as the instrument ages.

What is missing if the instrument's ethyl alcohol analysis system is not re-calibrated annually in a calibration laboratory?

1. The instrument depicted in the videos above appears to have reliable calibration at 100 mg/100mls, assuming that the target value alcohol standard is suitable and the simulator is reliable (a whole extensive discussion subject on its own).

2. In the absence of annual calibration in a calibration laboratory at multiple values below 100 mg/100mls, one cannot count on the reliability of any analysis of 40, 50, 70, 90 etc. because calibration is a curve, it is not linear. The 2 analyses, for example, on the above instrument of about 60 mg/100mls (truncated) 15 minutes apart are not reliable.

3. In the absence of annual calibration in a calibration laboratory at multiple values above 100 mg/100mls, one cannot count on the reliability of any analysis of 120, 140, 170, 210 etc. because calibration is a curve, it is not linear.

4. Note that zero is not a good calibration point. You can never have a true zero alcohol standard and probably never have a good alcohol standard/simulator below 20 mg/100mls. The 5000 instrument masks the first 006 mg/100mls in any event because of noise.


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