In Canada, wet-bath alcohol standard, used in recirculating mode, may only be used a maximum of 50 uses. The best evidence, and perhaps only evidence, of how many times the approved instrument has run a cal. check, lies in the instrument's internal data, the audit trail, that can be downloaded using COBRA software. After spreadsheet sorting, the control test audit trail looks like this on a spreadsheet or printed on 8 pages of paper in landscape mode pasted end-to-end:
The following is an excerpt from the decision of Justice Tuck-Jackson in R. V. O, 2014 ONCJ 440 (CanLII):
[88]Some police services, including Peel Regional Police Service and some detachments within the O.P.P., move all of the downloaded COBRA data into a spreadsheet file created within the Excel computer program. It is Mr. Palmentier’s understanding that CMI advertises that COBRA version 4 software can output into Excel.
[89]The advantages of having the COBRA data presented within a spreadsheet file generated by Excel are threefold and, essentially, self-evident. Firstly, in this format, all of the fields of information or data can be presented. Secondly, in this format, all of the data generated by the A.I. is organized in chronological order. This permits the reviewer to see how the data interrelates and correlates with one another. Thirdly, the content of an Excel spreadsheet can be manipulated. The content can be sorted and filtered. This assists in narrowing down the data of interest to the reviewer. Numerous examples of this form of presentation appear in Ex. 2.
How does the COBRA Audit Trail help Crown and Defence to Count Control Tests Sequentially?
The field headings for the yellow box shown above are:
By looking at the the data above for std_chg_dt 08-Jan-12 at std_chg_time 03:14:56 we can count 19 uses of this bottle of alcohol standard to the bottom of this yellow box. We also have information about the expiry date of this bottle of alcohol standard std_exp 31-Jul-14. Neither of these pieces of information are available on an Ontario Intoxilyzer Test Record printout. By looking at other fields across the very wide spreadsheet, we can identify and count the sequence of solution change, uses for stand-alone control tests, and our client's subject tests.
Why is hard data about Usage Count Important to the Crown's prima facie case proving 320.31(1)(a)?
The Alcohol Test Committee states in Canadian Society of Forensic Science Alcohol Test Committee Recommended Operational Procedures Effective: 2018 December 18, page 4:
3. A system calibration check shall be conducted within the range of 50 to 150
mg/100 mL and shall give a reading within 10% of the target value of the
alcohol standard.The alcohol standard shall be certified by a designated
analyst.
a.Where a simulator is used for the calibration check, the temperature of
the alcohol standard shall be within the range of 33.8 to 34.2oC to
produce a target value of 100 mg/100 mL. The use of a portion of a
batch/lot of alcohol standard in a simulator with a non-recirculating
system shall not exceed 7 days or 16 calibration checks, whichever
occurs first. For a simulator with a recirculating system, use shall not
exceed 15 days or 50 calibration checks, whichever occurs first.
It is respectfully submitted that compliance with this operating procedure, published by the CSFS Alcohol Test Committee, is a scientific condition precedent, to the Crown's proof beyond a reasonable doubt of Criminal Code section 320.31(1)(a). The best evidence of compliance or non-compliance lies in the COBRA audit trail of control tests. Using this audit trail, the Crown can prove or the defence can disprove, that the maximum number of uses has not been exceeded.
The Ontario CFS Intoxilyzer 8000C Training Aid states (quoted from 2011 version):
There are five occasions when the Centre of Forensic Sciences recommends that the alcohol standard solution be changed 1. 2 weeks (not exceeding 15 days) or 2. after 50 calibration checks...
The Intoxilyzer Test Record printed at time of use does not record the number of uses of the alcohol standard (see the image from the Training Aid later in this article) . The Intoxilyzer Test Record printed at time of use does record the date of use and the last date that the alcohol standard was configured. The Intoxilyzer Test Record printed at time of use is good prima facie evidence of the "15 days" ATC operating procedure and the CFS "2 weeks (not exceeding 15 days)" recommendation, but provides no evidence of the count, the number of calibration check (control test) uses of the particular bottle of alcohol standard in this wet-bath simulator, since the Configuring the Alcohol Standard sequence was run. The Certificate of Qualified Technician provides no evidence of number of calibration check uses.
An Intoxilyzer 8000C has an automatic usage counter that resets every time the "Configure Alcohol Standard" sequence is run by a solution change qualified technician. The automatic counter puts a flag on the Intoxilyzer 8000C indicator screen that can be viewed by the operator during a subject test. Did the QT in your case, when and if they observed that flag, make handwritten notes of that count of control tests that came up on the screen? Read your disclosure carefully to find out and then cross-examine on it.
But what can go wrong, with automatic usage count?
The automatic usage counter only functions properly if:
The counter is reset at the correct time, i.e. concurrently with physically changing the alcohol standard.
The solution change QT remembers to "Configure the Alcohol "Standard".
The solution change QT does not leave /delegate "Configure the Alcohol Standard" sequence to a different QT.
No subsequent QT "Configures the Alcohol Standard" without physically changing the alcohol standard, e.g. a later QT who corrects a lot number error in Esc Esc S entry.
No subsequent QT uses the wet-bath simulator / alcohol standard combination for ASD calibration or accuracy checking, then returns the simulator to the original Intoxilyzer i.e. using the quick-connects between simulator and Intoxilyzer. (You will only find this out through disclosure requests and cross-examination.)
Note the following warning respecting the Esc Esc S option, including a stop sign at page 85 of 238 in the 2013 CFS Intoxilyzer 8000C Training Aid, "Do not proceed with the steps in this menu unless the alcohol standard solution is actually being changed." [Emphasis in original. Check what a stop sign means in the Training Aid.]:
See the blog entry of an example where: solution change officer does not follow standard operating procedures respecting "Configuring the Alcohol Standard"
The 2013 CFS Intoxilyzer 8000C Training Aid states at page 84 of 238 :
Configuring the standard has several important functions
It retains the name of the alcohol standard manufacturer, lot number, solution expiry and date changed in the instrument memory for automatic printing on test records and certificates.
It keeps a tally of the number of calibration checks performed since the last solution change (to ensure that no more than 50 calibration checks are performed).
It monitors the number of days since the solution was last changed (to ensure that ≤15 days have elapsed).
If the QT did not properly configure the alcohol standard at the time of solution change, is the automatic counter of any use whatever?
Here's what the 2011 CFS Intoxilyzer 8000C Training Aid says about the purpose of a properly configured standard:
It follows that if the solution change Qualified Technician did not properly "Configure the Alcohol Standard", then the automatic counting, flagging, and shut-off system won't operate properly. In such circumstances, some evidence of number of uses may be found in a combination of places: the Alcohol Standard Log (if local police use them - see R. v. Jackson where they were used) and the notes of all Qualified Technicians who used that particular alcohol standard.
The best evidence, however, for use by Crown or defence, will be found in the COBRA audit trail of the full sequence of control checks for the relevant period. In the first image below (same as the yellow box at top above) you can see some of the COBRA audit trail 55 fields, including, wet bath or dry gas, standard target value, standard lot number, date of expiry of that lot number, alcohol standard manufacturer name, solution change date, and solution change time. Not all of these fields are displayed on the Intoxilyzer Test Record. An Ontario Intoxilyzer Test Record only indicates Alcohol Std. Manufacturer, Alcohol Std. Lot Number, Date solution Last Changed, Time solution Last Changed, Solution Change Officer Name, and Solution Change Officer Badge Number.
In the yellow box image you can see some of the COBRA audit trail 55 fields: including type of control test (during subject test or stand-alone), the fact that it is a Cal. Check (we use Excel to hold this field constant for electronic sorting), the cal. check result (also useful for a calculation of precision), the time the test sequence was initiated, and a date/time stamp.
Contrast the audit trail COBRA data of these fields with the limited Intoxilyzer Test Record printout below. The example below is of a simulated subject test. The example is an excerpt from the CFS Intoxilyzer 8000C Training Aid. Note the fields that are missing: wet bath or dry gas, standard target value, and date of expiry of that lot number. These missing essential fields can be found in the audit trail but are not on the disclosed Ontario Intoxilyzer Test Record.
In the second image below you can see some more of the COBRA audit trail 55 fields: including type of control test (during subject test or stand-alone), the fact that it is a Cal. Check (we use Excel to hold this field constant for electronic sorting), the cal. check result (also useful for a calculation of precision), the time the test sequence was initiated, and a date/time stamp. This is the yellow box at the far right of the image at the very top of this page.
The field names for the data above are, source, res_type, res_value, time stamp for the beginning of that sequence, data and date/time stamp (see VIML definition of audit trail).
If continuity of the alcohol standard is an issue, both Crown and defence need a full picture of ALL of the control tests, at least from solution change to solution change. The relevant period - solution change to solution change - was one of the issues in R. v. Ocampo, 2014 ONCJ 440, where the seal numbers on the Alcohol Standard Log (see Intoxilyzer Training Aid reference above to "hard copy alcohol standard log" ... "Appendix E") were inconsistent between the outgoing seal solution change compared to the incoming seal solution change. Seal numbers did not match. At paragraph 64 of her decision, Justice Tuck-Jackson noted:
A copy of the relevant log entry appears in Ex. 3, Tab 10, second page in. The log entry also provides information regarding the chain of continuity of seals affixed to the simulator, which contains the alcohol standard solution, before and after the technician changes the solution. The Crown has apparently provided all relevant log entries that it claims bracket Mr. Ruiz Ocampo’s tests. It is noteworthy that the log entry that follows that of June 7, 2011 falls on June 28, 2011. The notation as to the “old seal”, namely that which the new seal replaces, does not, as one might reasonably expect, refer to seal number 2N4873.
At paragrapghs 104 Justice Tuck-Jackson quoted from the transcript:
Q. But if for example there was another calibration check that was run during that intervening period of 1:51 to 1:55, that would show up –
A. That’s correct. But when I look through the data that was printed off there was no calibration check done between those two moments in time.
Q. None that’s been disclosed. But if we had access to the electronic version of the cobra data then we would know whether there was an intervening event, would we not?
A. That’s correct but I didn’t see one in the downloaded information that you were provided.
At paragraph 105 she stated the following, quoting from the transcript:
[105]According to Mr. Palmentier, the most complete source of information, in chronological order, as to the functions executed by the A.I., would be the COBRA data in electronic format:
…
Q. …Wouldn’t a method of making sure that one had the complete cobra data for the period of time spanned by the PDF version of data that’s already been given to us, a way of making sure that we had complete data for that period of time and in chronological order would be to look at the electronic data version of the cobra data?
A. If you were interested in it, yes.
Who were the Qualified Technicians who had contact with this Intoxilyzer AND this Wet-bath Simulator and during the period between solution change and your client's subject tests?
Who did each of the counter resets - Configure the Alcohol Standard?
Who may have separated the wet-bath simulator from the Intoxilyzer and used that simulator/alcohol standard (in non-recirculating mode) for ASD calibrations or calibration checks?
Who used that Intoxilyzer - simulator/alcohol standard combination during the period between solution change and subject tests for your client?
If there is a continuity issue or if there is an issue as to usage count, it may be necessary for the Crown or Defence to find out the names of each of the Qualified Technicians who worked in this breath room, worked with this Intoxilyzer, and/or worked with this wet/bath simulator between the alleged last solution change date and the date of your client's subject tests. The Crown and Defence may want to know if those qualified Technicians ran subject tests or contol tests or both. Who used this Intoxilyzer? Who needs to receive a subpoena?
Please remember that in busy urban areas, the solution change officer on a Sunday, will probably be different than the QTs running subject tests on Monday and Tuesday, and the QT from your client's subject tests on a Friday. Complete information, that relates to continuity and usage count, may be very helpful during examination or cross-examination of the Friday QT.
The third image below shows additional fields taken from the 55 field wide image of COBRA data shown at the top of this page. The first three fields in yellow are the same as the first image: std_manuf, std_chg_dt, and std_chg_tm. These fields help the viewer to find the last std_chg_ date and time. The two fields to the right in white show the solution change officer and their badge number. In Peel Region, the "DR5792" is the serial number of the wet-bath simulator. Knowing that serial number is useful to the defence in finding out if that same serial number wet-bath simulator was used during the same period of usage count, in a non-recirculating system, i.e calibration checks on approved screening devices. Other police services record this serial number in the CFS "Alcohol Standard Log" ... "Appendix E". From the Crown's perspective, if the data below was litigated, it appears that this DR5792 is being continuously used with this particular serial number Intoxilyzer 8000C. This is good probative evidence that the Crown could use. Please note in the example below, that the solution change officer field (std_name )and badge number (std_badge) remain constant over time between "Configure the Alcohol Standard sequences", i.e. counter resets. A change in officer's name in the std_name field indicates to the Crown or a defence lawyer that there has been a usage counter reset.
Image 4 looks at another part of the same spreadsheet. The data in the 3 fields at the far right includes non-solution change qualified technicial officers, i.e. those who acted as "operator", specifically fields opr_number, opr_name, and opr_agency. The data in fields 7 and 8, between solution change officer and operator qualified technician shows the name of the arresting officer for the subject tests between solution change and your client's subject tests: arr_name and badge number arr_number. This information is useful to the defence in formulating specific disclosure requests and to Crown and defence in seeking subpoenas.
The COBRA audit trail for the period between solution change to subsequent solution change is probative and complete. Paper disclosure of the Intoxilyzer Test Record and the Certificate of Qualified Technician is less probative and incomplete. A suggested wording for your disclosure request is: "all of the COBRA data associated with the changing of the alcohol standard solution that bracket the impugned testing sequence."
Order by Justice Tuck-Jackson in 2014 ONCJ 440 (Canlii):
[141] The application for the order sought, as articulated in item “(1)” in ¶ 5, supra, is allowed in part. The Crown must disclose all of the COBRA data that was generated by the Intoxilyzer 8000C bearing serial number 80-005153, commencing with every standalone di- agnostics test, standalone calibration test, and self-test, right up until the end of the testing sequence that includes Mr. Ruiz Ocampo’s subject tests, less intervening testing sequences involving other test subjects, and all of the COBRA data associated with the changing of the alcohol standard solution that bracket the impugned testing sequence and it must do so in its native raw text file extension form. The application for the orders sought as articulated in items “(2) to (4)” in ¶ 5, supra, is dismissed.
Note: It is easy for the disclosing Crown or police service to redact fields containing identifying information of other test subjects. Ask Allbiss Lawdata Ltd. for help in knowing what you should request.