Is it safe to assume that the target value of the alcohol standard was 100?
Updated: Sep 14, 2022
The video below displays a variety of alcohol standards that could be used in a #duisimulator for evidentiary breath testing for calibration checks, other control checks, and instrument calibration in Ontario. Please bear in mind that Approved Screening Devices require calibration and calibration checks every bit as much as Approved Instruments. "Calibration" of an Approved Instrument at the Canadian Authorized Service Centre may be an issue - what standards other than 100 were used to tweak the controls that change the optical bench? What is their pedigree? What standards other than 100 were used by the Inspector during the annual inspection recommended by the Alcohol Test Committee?
However, target value is important in every control check by police. The target value of the Alcohol Standard is not stated on the Intoxilyzer Test Record, the Certificate of an Analyst, or in the Certificate of the Qualified Technician. The fact that there were two or three calibration checks between 90 and 110 mg / 100 mls has no probative value unless you know that the target value of the alcohol standard was 100 mg / 100 mls.
It may be the case that the particular Police Service generally buys 100 standard, but consider the possibility that they have purchased another standard from a supplier. Police services sometimes purchase alcohol standards of other values for senior breath tech use during periodic inspections.
If an Approved Instrument is getting old and is reading too high (e.g. 100 reads as 110), use of a target 90 alcohol standard (or a watered down by 10% 100 standard) would result in calibration checks at or about 100 mg / 100 mls plus or minus 10 mg / 100 mls and make it look like that Approved Instrument is properly calibrated. It is unlikely that a police officer would ever do such a thing but it is the responsibility of a criminal defence lawyer to make sure that a 100 mg / 100 mls standard was and is being used by that police detachment.
There is documentation of the target value or values used at the police detachment stored in the 8000C COBRA IV data in Column H under the field name "std_val". Review of this data, including a review of changes in this data over time, is therefore useful to the defence. Here are the first 8 field names of approximately 55 in a COBRA IV download. The field std_val indicates target value. Obtain COBRA by Stinchcombe, O'Connor, or FOI to determine the target value(s) of alcohol standard being used by the police. The paper Alcohol Standard Log (completed on paper at time of Configuring the Alcohol Standard) should also contain target values. See Appendix E to the CFS Intoxilyzer 8000C Training Aid. However, some police services such as Peel, have stopped using paper records and rely only on what is contained in internal data.
Disclosure / transparency of COBRA data would be helpful to both the Crown and the defence in investigating if the local police service uses alcohol standards other than 100. COBRA data showing that during the past year this particular police service has only used 100 standard (in other words only 0.100 appears in the std_val field) would be probative and relevant to establish that this police service only uses 100 mg/100mls alcohol standard during control tests on their Intoxilyzer 8000Cs. The appearance of std_val 0.095 or 0.105 entries in COBRA, would be probative and relevant to establish that evidence of control tests (e.g. 106 or 94) at time of subject test was not probative and relevant in proving the conditions precedent to 320.31(1)(a): "the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst."
Below is an example of a cross-examination of a solution change QT where the officer admitted that the only notes of the steps he took during the solution change are in the internal data:
MR. BISS: Q. And you didn’t make any notes of the set up of the 8000C on March 28th? A. No, they can — they are contained in the — the — the actual receipt from the — from the Intoxilyzer 8000C of when I changed the solution and when I set up the instrument. Q. Where’s that receipt? A. It’s — there’s one for the copy of the — that the accused was getting of his breath test samples. Q. So you have no handwritten notes of the steps you took in changing the alcohol standard and in configuring the alcohol standard, I think is the technical term?
A. No, written notes, no. They’re computer notes in the instrument itself. itself? Q. They’re computer notes in the instrument A. Correct. That I enter the information into.