• Stephen Biss

All of the Software is Legally Relevant


To establish that the international literature indicates that all of the approved instrument's software is legally relevant to reliability of the measuring system.

To distinguish "audit trail" (e.g. COBRA data) from instrument software (e.g. source code)

Note also the identification of software version in the type approval certificate. We don't do that in an Approved Instruments Order by the Minister.

Q. Now I just want to go back to R-1-26 again, you, please – that’s the thick O-I-M-L bundle.

A. Okay.

... A. Tab 7, okay. Q. Tab 7, page...

A. Page 18.

Q. ...18, top of the page under 6.4, under A. Software, yes. Q. And if you can just read that paragraph, A. “The whole software of the breath alcohol analyser should be considered as a legal – as – should be considered as legally relevant. In the event of a software separation as described in of O-I-M-L D-31:2008(7) the whole software is considered as legally relevant.” Q. So, it appears that, from the perspective of the international standard, of O-I-M-L R-1-2-6 that their perspective is that the whole of the software of the instrument should be considered legally relevant, but I understand that’s not the position taken by the Alcohol Test Committee or the Centre of Forensic Sciences recommendation.

A. That's correct. That’s an O-I-M-L as it says on the first page...

Q. Yes. A. ...of their chapter seven, it says recommendation.” I believe there’s also a

document from an organisation in the United States saying that the software is irrelevant as well

Q. And what organisation is that? A. I would have to get it from my vast number of documents there in order to tell you which exact organisation it was. Q. Maybe we should just check it during the coffee break? A. Sure.


U P O N R E S U M I N G : THE COURT: Okay, sir. MR. BISS: Thanks Your Honour. Over the break, Mr. Palmentier was able to find the paper that he referred to with respect to software. THE COURT: Okay. MR. BISS: And I should clarify what I’m – for this - purposes of this discussion right now, we’re talking about software, source code for the instrument, which is not the same thing as data, the audit trail for the instrument. A. Correct. The software operates the instrument and the source code is the written computer language that says ‘do this function or do this function’ whereas the information that the instrument collects, is the downloaded data, and you use software called Cobra to download the data from the instrument about all the parameters of what occurred at a particular time, whether it’s stand alone calibration check or a breath test sequence or a diagnostic failure. Q. All right, but just with respect to software. This came up when I was pointing out something in the O-I-M-L R-1-2-6. A. Yes.

Q. And you referred to.... A. Six point four. Q. Yes. A. On page 18. Q. In the 2012 version, Tab Number... A. Seven. Q., yes? A. Yes. Q. Right. And you mentioned that there was an article that you knew of and specifically something from the National Safety Council’s Committee on alcohol and other drugs. A. Yes, it’s actually a position paper. Q. It’s not a scientific opinion? A. No, it’s a position paper. Q. Right, and the date.... A. Similar to the one of – with the A-T-C with respect to the proper working order and the materials required for determining that. Q. Yes. This position paper is dated – it says it’s adopted February 16th, 2009. A. Correct. Q. So, that would be before the O-I-M-L standard R-1-2-6 of 2012. A. The recommended standard, yes.

Q. And on – I just notice on – on page two of three, in this document about – and under “comment” about one third of the way down, or a quarter of the way down the page, it says, “Likewise, the international recommendation on breath alcohol analysers O-I-M-L R-1-2-6 evidential breath analysers, promulgated by the international organisation of legal metrology, an international treaty organisation of which the

United States of America is a member state, does not refer to or include the source code of analysers in its recommendation.” A. Yes. Q. Right. And so, obviously, they must have been referring to O-I-M-L R-1-2-6 from – the previous one, which I gather was 1988, I think it was, which is the Tab Number 6 in the book. A. 1998. Q. Oh, 1998, I’m sorry. That’s Tab 6, whereas 2012, the O-I-M-L took a completely different position from what we saw when you were answering my questions this morning. A. Yes. MR. BISS: All right. Your Honour, in fairness to the Crown this should be made an exhibit. THE COURT: Okay, this is National Safety Council’s committee on alcohol and other drugs position paper and Exhibit 39. EXHIBIT NUMBER 39: National Safety Council’s committee on alcohol and other drugs position paper – produced and marked.

See also:

OIML R126 1988 at

OIML R126 2012 at

OIML D31 2008 at

#crossex #software

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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.
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Datamaster®  is a registered trademark of National Patent Analytical Systems, Inc.  The BAC Datamaster® C  is an "approved instrument" in Canada.