• Stephen Biss

Relevance of Contemporaneous Documentation by Inspector Taking Instrument Out of Service


To establish that if there is an indication in the maintenance records that the instrument was taken out of service for consistently low checks, it is necessary to obtain disclosure or production of the contemporaneous documentation by the inspector, who made that decision, and the printouts obtained by the inspector from the Intoxilyer to understand the context and significance of that decision to take the instrument out of service.

Q. Right. Here’s something rather strange about the case that’s before the Court. In Exhibit 12 page 1, under ‘History’ 5-20-2015. Periodic inspection complete. And of course, we don’t know who the author is of this notes, but... A. Correct. Q. ...periodic inspection completed. Consistently low cal-checks. A. Yes. Q. Now, can you tell from reading that, whether the individual is talking about low A-B-A cal-checks or low A-C-A cal-checks?

A. No. You can’t tell what. Q. Can you tell whether they’re talking about low A-B-A cal-checks at 50 or 150 or at 300 milligrams per 100 mils? A. Shall I just refer to this? Q. Sure. A. Is there a copy of the – oh, here it is. So here is a copy of the May 20th, 2015 inspection. And the one for April 14th, 2015. THE COURT: What page is that? A. Page 45 and 46. The last two pages. THE COURT: Okay. A. And one again for March 6, 2015. MR. BISS: Q. So, in those three pages, where’s the documentation of consistent low cal-checks? A. Well, I’ll tell you this, that the form, and I don’t remember if I said this earlier, has changed. So, from the date of October 7th, 2014... Q. Yes. A. ...the form that was being used for the Intoxilyzer 8000C periodic inspection sheet on page 39, changed to a one-page document. Q. Yes. A. With the same title, but now it’s condensed to one page. Q. Yes. A. And so, there’s no information associated with these sheets, so with the previous inspection sheets there were test record cards that were provided. Q. Yes. A. And they show that – I’m just checking through these other ones here. So, these were – so it appears

that the check of the alcohol standards at the various concentrations we done using what we call – what we called earlier A-B-A. So you have an air blank and then a breath test and then an air blank. Q. Yes. A. As opposed to a calibration which is an air blank, calibration check, and an air blank. Q. Yes. A. And so this is one where you would blow through the simulator containing the alcohol standard solution to get the results that way. Q. Right. So that’s not going to show up in the Cobra data that we already have in this case. A. Correct. Q. Because these could very possibly be A-B-A sequences. A. Yes. So, there’s no – unlike those previous inspections, there are test record cards associated with, there are three documents here; the Intoxilyzer 8000C periodic inspection worksheet. There is no additional information with respect to printouts of how the standards were done, or how many standards were done or what concentration they were at. Q. I guess we have to look at officer’s notes to see what those were, if we don’t have the printouts and there’s no documentation in the periodic inspection worksheet, would it not make sense from a scientific perspective to look at the officer’s notes to try and figure out what on earth this was of the consistent low cal-checks that caused the instrument to be taken out of service? A. Yes, in this case, it would make sense to see the printouts of the Intoxilyzer 8000C test record cards,

associated with these particular inspection sheets. Q. Right. A. But again, tests associated with – or data associated with other tests previously in time... Q. Yes. A. ...have no value whatsoever. Q. Right. But we have – we have a note from somebody that there were low cal-checks and they were consistent. What’s the word consistent mean to you? What do you infer from that? A. Regularly. Q. Regularly low cal-checks. So not just one or two or three, but it’s happening on a regular basis. A. That's correct. Yes. That’s what I would interpret that to mean, but again, you’d have to ask the author what they meant by that. Q. And it doesn’t necessarily mean that it was just that one day, of May the 20th, 2015. It could’ve been in the days leading up to May the 20th, 2015. A. Again, you would have to ask that officer the definition and over what period of time they were referring to. Q. All right. A. So, if I made myself clear, that yes, it’d be interesting to see the results of the printouts... Q. Yes. A. ...for those worksheet reports, but not any other data from any other subject test in the past. Q. So, we know that the – somebody made a decision to take the instrument out of service and send it to the manufacturer for complete recalibration. We have that piece of information.

A. That’s what that says, yes. Q. To create a whole new calibration curve. A. Yes, and therefore a new I-T-P.

#annualmaintenance #inspection #calibration #ITP

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