Cross-examination of Solution Change QT on Standard Operating Procedures (SOPs)

Updated: May 17

The cross-examination example below, is of a very, very, experienced and respected qualified technician. Notwithstanding his training and experience, he made mistakes that affected the reliability of the evidentiary breath testing process and, I respectfully suggest, the reliability of the measurement results. He did not follow a checklist, because his police service did not have a checklist.


To establish that QTs, including very experienced QTs, sometimes err if they don't follow a checklist of standard operating procedures (SOPs) when changing the simulator solution

To establish that, at the time, the local Police did not maintain any record/checklist of compliance/Appendix E Alcohol Standard Log (other than the breath room video and COBRA) with solution change SOPs

To set up the story of normalcy being advanced by the Crown as to a proper solution change, before attempting to pull it apart

To (in the subsequent blog entry) demonstrate that in such circumstances, the only good record of the solution change lies in disclosure and analysis of COBRA data

Excerpt Page 7-8 of 2009 CFS 8000C Training Aid

MR. BISS: Q. Okay. Let’s — let’s move to a

completely different area. Does [the local] Police have a set

of standard operating procedures about the set up of an

Intoxilyzer 8000C?

A. I'm sure there is.

Q. You’re sure there is. Have you ever read it?

A. Of how to set up the Intoxilyzer?

Q. Yeah. Standard procedures from [the local]

Police as to how qualified technicians are supposed to set up an

Intoxilyzer 8000C for use?

A. I'm sure I’ve read back in — when I first

started, but I haven’t seen it or known — or done anything with

it since. I’ve been trained on how to set up the Intoxilyzer

through — through my training.

Q. We all know you’re a very experienced officer,

very experienced qualified technician, you’re trained in 2009,

you took — I think, the training aid you worked with and — was

the training aid of 2009 from the Centre of Forensic Sciences,


A. Correct.

Q. Okay. But since that point in time, have you —

have you worked with any kind of — of standardized set of

procedures that come from [the local] Police as to how it is

that you are to set up an Intoxilyzer 8000C?

A. If I were to answer your question in regards to

how the instructions would be, my belief the instructions would

say to refer to my training of the instrument in the set up of

the Intoxilyzer 8000C.

Q. But you certainly don’t have a copy of those

standard operating procedures, if they exist, from [the local]


A. No, I don’t have a copy.

Q. And there’s no [local] Police checklist

for setting up an Intoxilyzer 8000C?

A. No, there’s no checklist.

Q. If you’re — if you as a qualified technician

are called into a detachment, usually the instruments are already

running, already set up by somebody else?

A. Yes, they’re just in standby mode.

Q. But in this kind of circumstances, use in the

breath truck, the officers who were going to be the qualified

technicians that night, whether it’s one or whether it’s more,

one of them, I gather, has to set up the instrument. Take it out

of the pelican case, and set it up, plug it in, attach it, hook

it up?

A. Correct.

Q. And they not only have to set up the

Intoxilyzer 8000C but they’ve also got to set up the simulator?

A. Correct.

Q. And does the simulator come out of the same

pelican case or — or a different pelican case than the 8000C?

A. No, it’s — in the same case.

Q. And this was the hospital kit?

A. Correct.

Q. So when you do that in the mobile breath truck,

are the procedures any different than say setting up a new

instrument at a — at a detachment?

A. No. Like....

Q. So if you were setting up a — the Intox — that

same Intoxilyzer 8000C at a hospital, you’d bring the pelican

case, set it up at the hospital, are the procedures you follow in

setting it up any different than what they would be in setting it

up in the breath truck?

A. Yeah, there’s only one difference.

Q. What’s that?

A. In the division we have a — like, a battery

backup unit .....

Q. What steps do you follow? What do you do?

A. Well, take the unit out of the — the box. I’ll

place it on the table. I will take the simulator out. I will

open a new bottle of solution, add the solution to the simulator,

seal up the jar, connect the hoses to the instrument. The

simulator itself plugs into the back of the 8000. The 8000 plugs

into the wall. I would enter in where we are. I would enter in

information of the standard solution change. Wait for the

standard solution to warm up. I would then do — and for the

instrument to warm up and power up. I would then do a diagnostic

check and a calibration check to ensure that the instrument’s in

proper working order.

Q. Yes. Anything else?

A. No, that’s pretty much it.

Q. And is that what you did that particular night,

March 28th?

A. Yes, I did.

Q. And when you do that you don’t follow a


A. No, I’ve set up the instrument hundreds of


Q. You've set up the instrument hundreds of times

where, at hospitals, breath truck....

A. Hospitals, breath trucks, division, at my


Q. But the point is you’re not following a

specific checklist given to you by [the local] Police, right?

A. No.

Q. You’re just going on the basis of your...

A. Training.

Q. ...experience and training?

A. On my training.

[The Second Stage of this Cross-examination (a subsequent blog) attempts to pull apart the normalcy established by the evidence above, the Crown's filing of the Certificate of the QT, Intoxilyzer printout, and hearsay evidence from the subject test QT. See blog entry "Cross-examination of solution change QT using COBRA" that follows next week. Note that without the COBRA cross-examination, the normalcy, the Crown's prima facie case for use of presumptions, would be established under both Bill C-2 and Bill C-46. Use of COBRA data by the defence ultimately attempts to pull apart that normalcy, to deny the Crown's use of the "presumptions" under C-2 and "conclusive proof" under C-46.]

[Note: Please don't assume that a cross-examination, revealing that the local police do not follow their own SOPs or their CFS training, will result in an acquittal. You will probably need to call an expert to testify, as to the importance of following SOPs, to the reliability of the air blanks/cal. checks.

Parliament has said in C-2, that approved instrument readings are reliable and accurate, without any stated condition precedent:

320.12 It is recognized and declared that

(c) the analysis of a sample of a person’s breath by means of an approved instrument produces reliable and accurate readings of blood alcohol concentration;

The Certificate of Qualified Technician and the Intoxilyzer Test Record, without proof of compliance with SOPs or training, are prima facie proof:

320.32(1) A certificate of an analyst, qualified medical practitioner or qualified technician made under this Part is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person who signed the certificate.

320.33 A document that is printed out from an approved instrument and signed by a qualified technician who certifies it to be the printout produced by the approved instrument when it made an analysis of a sample of a person’s breath is evidence of the facts alleged in the document without proof of the signature or official character of the person who signed it.

The Court may easily find that the Certificate of the Qualified Technician and/or Intoxilyzer Test Record is/are enough to establish compliance with 320.31(1) without the Crown having to prove that the officer(s) complied with their training or with SOPs.

An expert is probably necessary.]

10 views0 comments