• Stephen Biss

Reliability: Holding up the Tower

This image is conclusive proof of the author's ability to hold the tower at Pisa from falling over. Parliament could make a photo like this conclusive proof of a fact. Perhaps this is prima facie proof of a fact. Perhaps it is good evidence of a fact. But perhaps the camera malfunctioned. Perhaps the photographer erred. Perhaps this photo isn't reliable at all. Perhaps a Court could still have a resonable doubt about the scientific reliability of this proof.

The starting point for full answer and defence is having a complete perspective. One big problem with the above proof is that on the same day there were lots of other hands holding up the tower too! When one has a broader perspective it is obvious that something is wrong.

If there are lots of other weird photos, things out of the ordinary, things that don't smell quite right, then we humans have good reason to doubt and to dig deeper.

In criminal cases that means that defence lawyers must watch for things that aren't quite right and ask for complete Crown disclosure.

The following are images of Intoxilyzer Test Records from the January 22, 2015 tests on my 5000 64- (upgraded to 66- machine) discussed in the June 23, 2015 blog entry. Let's suppose that Parliament / government scientists say that such test records (assuming the other pre-requisites of 258(1)(c) and 258(1)(f.1) are conclusive proof of the BAC indicated. Doesn't human experience with error require that we see the full perspective? Doesn't scientific method require that we have a full opportunity to negate any alleged hypothesis? Doesn't the Charter require full answer and defence? Don't you need to know the dark history of this instrument?

ACABA two tests 15 minutes apart - results 000

ACABA two tests 15 minutes apart - truncated results 060

I respectfully suggest, that in the absence of context, these two sets of Intoxilyzer®test records are no more reliable than the image of the author holding up the tower at Pisa. Yes, knowing that an instrument is an "approved instrument" helps, knowing the suitability of the alcohol standard helps, and knowing that the instrument was operated by a qualified technician helps. Maybe those things are enough for prima facie proof or even 258(1)(c) conclusive proof but they are not enough to exclude a Court from having a reasonable doubt based on lack of reliability after the Court has heard ALL the evidence. That can only be accomplished if the defence can make full answer and defence. That means the defence must know any dark history of the instrument.

WARNING: What you read at this blog is NOT expert evidence. You cannot file this page in Court. It is provided for discussion among defence lawyers. Courts require evidence to reach their results. What you read here is not evidence but rather discussion among defence lawyers. You need to retain an expert witness.


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WARNING: Please do not attempt to use any text, image, or video that you see on this site in Court. These comments, images, and videos are NOT EVIDENCE. The Courts will need to hear evidence from a properly qualified expert. The author is not a scientist. The author is not an expert. These pages exist to promote discussion among defence lawyers.


Intoxilyzer®  is a registered trademark of CMI, Inc. The Intoxilyzer® 5000C is an "approved instrument" in Canada.
Breathalyzer® is a registered trademark of Draeger Safety, Inc., Breathalyzer Division. The owner of the trademark is Robert F. Borkenstein and Draeger Safety, Inc. has leased the exclusive rights of use from him. The Breathalyzer® 900 and Breathalyzer® 900A were "approved instruments" in Canada.
DrugTest® 5000 is also a registered trademark of Draeger Safety, Inc.. DrugTest® 5000 is "approved drug screening equipment" in Canada.
Alcotest® is a registered trademark of Draeger Safety, Inc. The Alcotest® 7410 GLC and 6810 are each an "approved screening device" in Canada.
Datamaster®  is a registered trademark of National Patent Analytical Systems, Inc.  The BAC Datamaster® C  is an "approved instrument" in Canada.