Two reasons why the data, close in time to the subject test date, included in Intoxilyzer COBRA downloads, is useful to the defence in making full answer and defence:
Preparation for cross-examination of the Qualified Technician
Challenging the QT during the cross-examination on whether or not they complied with their training and local police Standard Operating Procedures (SOPs)
on their evidence and certificate evidence, called by the Crown
defence use of the cross-examination as evidence to raise a reasonable doubt, (Interpretation Act evidence to the contrary)
on the section 320.31(1)(a) material issue:
"(a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst;"
Please remember that the Crown must prove the conditions precedent in (a) through (c) beyond a reasonable doubt before "conclusive proof" is engaged. Although the Crown can rely on documentary evidence (certificate of QT, Intoxilyzer printout) or hearsay evidence to establish a prima facie case on proof of the conditions precedent, the defence, under the Interpretation Act, can raise evidence to the contrary, respecting (a) through (c).
Let's suppose that you have disclosure of COBRA data that looks like this (colours added):
Well-prepared cross-examinations should not be blind cross-examinations. Even though the qualiied technician is totally confused as to times and sequences, the examiner needs, in advance of cross-examination, to have clear ideas of times and sequences, and a methodology ready to draw the witness back to such times and sequences, if the QT deviates. COBRA data provides such objective dates, times, and sequences.
Sample cross-examination of Qualified Technician, using the breath room video, but always knowing you have, in your back pocket a, (an even better than a video) reliable record of every transaction and sequence on the Intoxilyzer:
Q. Now, I wanted to ask you some other questions about the procedure that you followed and that is, do you have your – your training aid there handy?
A. Yes.
Q. Could you please turn to page 7-4 of your training aid? Page 7-4 and we’re looking at the 2009 version of the training aid. Did you find that page?
A. Yes.
Q. And just to get the context, that page is in the section of the 2009 training aid that – the title of the chapter at page 7-1 is Chapter Seven - Operation of the Intoxilyzer 8000C.
A. Correct.
Q. It’s in that context?
A. Yes.
Q. Page 7-4 has a list of recommended quality assurance checks at start of shift. And could you just tell us please, in your training, what was it you were trained to do as the quality assurance checks at the start of shift?
A. It says the instrument’s properly calibrated, it’s in proper working order and it’s capable of receiving a breath sample.
Q. You’re on page 7-4?
A. Yes.
Q. And you’re reading the purpose...
A. Sorry, what was....
Q. ...of the quality – of the recommended quality assurance checks at start of shift, right?
A. Yes.
Q. But what are the three recommended quality assurance checks at the start of shift?
A. It’s diagnostics check, calibration check and self breath test.
Q. All right. Now, if I were a qualified technician and I was running a diagnostics check, quality assurance check, I would do that by typing escape, escape, D as in delta, into the instrument, right?
A. Escape?
Q. Escape, escape – the escape key, the escape key and D as in delta into the Intoxilyzer. Is that right, sir?
A. That is correct.
Q. And the instrument at that point in time would run a self diagnostics. Isn’t that right?
A. That is correct.
Q. And when it ran that self diagnostics, there would be a whole number of messages that would come up on the screen and tell us whether the instrument passed its temperature check and its random access memory check and its processor checks and all of those things...
A. Correct.
Q. ...right? So that’s one of the things in your training that you’re supposed to do at the beginning of your shift, right?
A. Correct.
Q. And then the second one that’s listed there is a calibration check. Sometimes called a stand-alone calibration check?
A. Yes.
Q. Have I got that terminology right?
A. Yes.
Q. And the way that you do that kind of calibration check is, you type into the instrument escape, escape, C as in Charlie.
A. Correct.
Q. Right? And that runs a calibration check of the instrument before the subject’s brought in to the breath room.
A. Correct.
Q. And those are ways that you can make sure that the instrument is functioning properly?
A. Correct.
Q. And then the third recommended quality assurance check is a self breath test, right?
A. Yes.
Q. And the way – if I were a qualified technician and I was running a self breath test, the way that I would do it would be – I would type into the instrument escape, escape, B as in Bob, right?
A. Yes.
Q. And the instrument would run an air blank and then it would ask me to provide – and it might do a diagnostic, a short diagnostic but then it would ask me to provide a breath sample into the instrument and then after that it would run an air blank.
A. Correct.
Q. And hopefully if I was a qualified technician, it would result in a zero reading?
A. Yes.
Q. But that would be a way that a qualified technician could check and make sure that the instrument was properly calibrated, was in proper working order and was capable of receiving a breath sample.
A. Correct.
Q. Now, did you do those tests at the start of your shift on October 28th, 2011?
A. It wasn’t at the start of my shift. It would be prior to the breath test and I did not do the self breath test.
Q. So you ran – you ran a stand-alone diagnostics check prior to Mr. G’s subject test and you ran a calibration check prior to Mr. G’s breath tests?
A. Yes.
Q. But you did not run the self breath test?
A. No, I don’t believe I did.
Q. I want to suggest to you that one of the reasons why you should run a self breath test is that some Intoxilyzer 8000Cs have a problem with the flow sensor. You’ve heard about that?
A. I have.
Q. And you know that some instruments have had to be repaired because there’s a problem with the flow sensor on them?
A. Okay, yes.
Q. And so one of the reasons for doing the self breath test is to make sure that the amount of pressure required to blow into the instrument is normal?
A. Correct.
Q. And to make – to make sure, you know, that the whole flow system is – is...
A. Working.
Q. ...working properly because that’s important in terms of the criteria for flow and slope and determination of things to do with invalid samples – I see you’re nodding. That’s important...
A. Correct.
Q. ...in terms of the basic operation of the instrument. All of those flow settings are important, as you understand it?
A. Yes.
Q. So it’s important to do that kind of self breath test into the instrument and you didn’t do it in this particular case?
A. I did not.
Q. It’s certainly not in your notes and we don’t have any disclosure of it.
A. No, you don’t have the – the printout of it.
Q. Right. Now, the diagnostics check you said that you ran before Mr. G provided his breath samples, I didn’t see any printout in the documents you brought with you today or in anything we received in disclosure about a stand-alone diagnostics check at the beginning of your shift and it’s certainly not in your notes.
A. No I agree with you. There’s not a copy here. It’s just every breath tech has his own sort of procedure that he runs though. Mine is, I run the diagnostic and the calibration check before I do any tests of a sample. The self breath test was something that newly done with the 8000C and sometimes I do make the mistake of forgetting it because we never did it when you were an operator of the 5000C and I forgot to do it in this case.
Q. All right. So, if we watch the video, will we see you running the stand-alone diagnostics check and the stand-alone calibration check?
A. I would hope so. I know I do them. I don’t – I haven’t seen the video, so I don’t know what’s on there but my common practice is, I run those and I know I ran the calibration check, because that’s the small piece – exhibit 3.1 that it’s very difficult to read.
Q. All right. But you’d agree with me, there’s no reference to running these stand-alone checks in your notes at all, in your police memo book?
A. No, there’s not.
Q. No times when you ran these things?
A. No, there’s not.
Q. All right. Well, maybe it’s a good time to – to start playing the video and – and can I just ask you, Officer, the events that went on in the breath room, were they recorded on a police video system?
A. Correct.
... [discussion respecting when the the QT turns the breath room microphone on or off]
Q. What’s – what’s your training in terms of the protocol? Is it when he’s commencing his test and when he’s finished his test? What’s the protocol of the when? When to turn it on and when to turn it off?
A. I turn it on before the test subject enters the room and I turn it off when all the testing procedures are done and he’s returned to cells.
Q. Well, what about when the instrument’s doing its start of shift diagnostic check or start of shift calibration check?
A. To....
Q. Is it turned on during those?
A. No, I don’t turn it on then.
Q. So we’re not going to be able – because you left it turned off. I guess we’ll have to see the video but in your...
A. Unless they...
Q. ...in your...
A. ...turned it on.
Q. ...in your practice – what you do, you leave the sound, the microphone, turned off when the Intoxilyzer is going through its quality assurance checks?
A. Yes.
Q. And you don’t turn it on until the subject comes into the room?
A. Correct.
Q. I’m just asking you this because it’s been pretty difficult for us in court to try and figure out if this instrument was working properly or not because you would agree with me, you can’t really see the display on the Intoxilyzer 8000C in this picture, right?
A. Correct.
Q. So if we’re going to try and figure out what it is that you’re doing and when you did it, we’re going to have to listen to the sound but if you turned the switch off on the sound, that’s going to make it pretty difficult for us.
A. I haven’t....
Q. Right?
A. I haven’t turned it off; I just haven’t turned it on. But yes, you won’t be able to hear the sounds.
Q. All right. Well let’s – let’s play it starting then at 10:37 and then if you see a point in time at which you think that you’re running the escape, escape D as in delta sequence or the escape, escape C as in Charlie sequence, please – please stop.
A. Okay.
Q. Okay? So Mr. F., I think I just have to press....
MR. F: Yeah, go ahead.
DVD PLAYING....
MR. BISS: Q. Please tell us if you see the spot. We can stop there?
A. You can stop there.
DVD STOPPED....
A. It look now like I’m entering the data, so I can’t...
THE COURT: Sorry, meaning – what time is it when you stopped it?
MR. BISS: We’re at 10:41:19 p.m. October 28th, 2011.
THE COURT: Do you mean you’re entering the data right now on that...
A. It....
THE COURT: ...as at 10:41 and not in the seconds before that?
A. You know, it was seconds before that. It looks like I’m entering data now. It’s not – I’m – Your Honour, I....
THE COURT: I’m just saying I’m just trying to clarify what you mean and it’s more up to counsel. We started at 10:37...
A. Right.
THE COURT: ...you weren’t there. You went over in front of the machine and stood there for quite a while...
A. I’d be waiting....
THE COURT: ...before this 10:41 point where you say I’m entering data.
A. Correct.
THE COURT: I’m just trying to establish – are you saying now at 10:41 about – I’m entering data or those two or three minutes before that I was entering data?
A. No, I apologize, Your Honour. Maybe a few seconds before that. Just by looking at the video, as the lawyer indicated, when conducting calibration test and a diagnostic test, it’s basically you’re pushing two buttons, so it’s very quick. That looks like I’m standing in front of the keyboard and actually typing.
THE COURT: Okay, so....
MR. BISS: Q. Let me put it this way...
A. Yes.
Q. ...between 10:37 p.m. when we started watching this video and now at 10:41:19 p.m. there’s been no indication in the video whatsoever that you conducted the stand-alone, escape, escape C calibration check or the escape, escape D diagnostic check?
A. You’re correct. From what I can see there, it doesn’t look like I did.
Q. So it looks like prior to the point in time when you’re entering in the data for Mr. G, that you never did any of the three quality assurance checks that you’re supposed to do at the beginning of shift, right?
A. Apparently that’s correct. No, I did not.
Q. All right. Now, as I understand it, this instrument was checked in some way a few days after these events. That there was somebody who came in and did some servicing on the machine, November the 2nd, 2011 or some checking on the machine, on the instruments November the 2nd, 2011?
A. I have no idea.
Q. You have – you have no idea about that? All right. I’m just going to show you a document – I’m just going to show you a document and sir, maybe you’ve never seen this but this is something we got in disclosure that shows that somebody came in and inspected an inspection on Intoxilyzer 80-003746. Is that the same one?
A. That’s correct.
Q. And that’s on November the 2nd, 2011 but on this Intoxilyzer 8000C periodic inspection sheet, at the bottom there’s a place for them to put in paragraph number six – simulator verification with a model number and serial number and digital result and missed result of some verification about a simulator and that’s just stroked off. Do you agree with me on that document?
A. That’s correct.
Q. And that’s consistent, I guess, with the information you had – you – you don’t know what the simulator was that was being used at that time, serial number or whether – whether it had been inspected or what was going on with it?
A. Correct, I’m not.
MR. BISS: Perhaps we can make that an exhibit, Your Honour?
THE COURT: Exibit six. What do we call that?
MR. BISS: The Intoxilyzer 8000C periodic inspection worksheet of November 2nd, 2011.
EXHIBIT NUMBER SIX: Intoxilyzer 8000C periodic inspection worksheet of November 2nd, 2011. Produced and marked.
MR. BISS: Q. And – court’s indulgence for a second. Constable, can you tell us please what you were doing after midnight? Between midnight and 6:00 a.m. that day. You have – you have your notebook. Can you tell us please what you were doing during that period of time? I don’t want to know any – any people’s names that you were interacting with what were you doing generally during that period of time?
A. Basically when I was – after midnight I was requested to do another breath test.
Q. Yes? And can you just give us some time frames when that subject came in and just generally what happened?
A. Generally what happened?
Q. Yeah, generally what happened, as in did you – did you conduct another set of breath tests between midnight and 6:00 a.m.?
A. No, I did not conduct another set of breath tests. The male party refused and indicated he wasn’t going to provide any samples of his breath.
Q. All right. Can you tell us please, the context of that? Was that the type of refusal – let me – in court, we’re always talking about the difference between a refusal and a failure.
A. It was a flat out refusal. He just would not provide any samples of his breath for analysis.
Q. I see. So you didn’t get any – you didn’t get a – a breath sample from him?
A. Correct. There was no attempts made. He just flatly refused to give me a sample of his breath.
Q. So there’s no indication there of – of someone blowing into the instrument and it giving a reading?
A. Correct.
Q. All right. I wonder if we might switch to the – actually, no. I’m sorry. While we’ve got the DVD in, to save – to make time more efficient, perhaps we can continue playing the DVD.
DVD PLAYING....
THE COURT: I take it, Officer, your earlier comment about entering data is based on the fact your right arm’s moving back and forth?
A. That’s correct. I’m typing, Your Honour.
MR. BISS: Can we just stop right there, please?
DVD STOPPED....
MR. BISS: Q. We’re now at 10:42:16 on October the 28th, 2011 and the video depicts that you’re out of the breath room. Am I right in saying that?
A. Yes.
Q. You were going out to the cell area to get Mr. G?
A. Yeah.
Q. Yet, the Intoxilyzer 8000C is running. I think I can hear the pump running on the Intoxilyzer?
A. Mm-hmm.
Q. Was the Intoxilyzer running maybe an air blank or a diagnostics check during that period of time?
A. It could have been.
Q. Well, the pump’s running and doing something?
A. Correct.
Q. So it’s got to be either an air blank or calibration check. The pump’s running and doing something?
A. Yes.
Q. And when the pump’s running and – and telling – and giving – and let’s say the pump’s running and doing an air blank.
A. Mm-hmm.
Q. An air blank is where the instrument tries to bring itself down to zero...
A. Correct, it....
Q. ...right?
A. It sucks air out of the room into the instrument and through it and then back out of it, to clean it out, basically.
Q. And hopefully it comes up with a zero-zero-zero result?
A. Right.
Q. And as well, there’s another procedure called the calibration check, where the pump is running too and if – if either an air blank is running or a calibration check is running, there’s information coming up on the screen of the Intoxilyzer, right?
A. Mm-hmm.
Q. You’d agree with me that from what we can see in this video, we can’t see what’s coming up on that screen?
A. Correct.
Q. At least now we’ve got sound, as of this moment.
A. Mm-hmm.
Q. But we can’t see what’s on the display and you’re not in the room to monitor the operation of the instrument, right?
A. Right.
Q. So the instrument’s doing something as part of the sequen – this is part of the sequence – part of the breath test sequence for Mr. G?
A. Mm-hmm.
Q. This is part of the – it’s part of the sequence that is in exhibit – the long one is 3.2 I think? This is part of the sequence we see in exhibit 3.2 but you’re not there monitoring what’s going on in the instrument?
A. No, I run out to get the test subject and if it was conducting an air blank and detected alcohol in the room, it would – there’d be an audible tone and it would come up on the screen telling me there was an error when I came back in the room. I would see that it says there was an error.
Q. Well, that’s what you’d hope for if the machine is functioning the way it’s supposed to, right?
A. Yes.
Q. But you’re not even in the room to monitor what’s coming up on the screen to see if there’s anything weird coming up on the screen?
A. Correct.
Q. I mean, during an air blank, normally you would see some digits come up on the screen and it should settle at zero and then give a beep and move on to the next thing and you’d be able to see that on the screen, right?
A. Right.
Q. Or, if the instrument’s running a diagnostics check and as I understand it, the diagnostics checks that are run as part of a – as part of a breath test sequence don’t take as long as the stand-alone start of shift diagnostics checks, do they?
A. Correct.
Q. There’s a whole lot more information that you get during a stand-alone diagnostics check that comes up on the screen?
A. Correct.
Q. On a diagnostics check that’s run as part of a breath test sequence, just some dots come up?
A. Correct.
Q. But you weren’t – if – if part of what’s happening now is the diagnostics check, you’re not there to see the dots come up or get any other information from the screen of the instrument, right?
A. You’re correct.
Q. So let’s play it again, please and go on from there.
DVD PLAYING....
MR. BISS: Can I just please stop it for a moment?
DVD STOPPED....
MR. BISS: Q. We’re now at 10:42:30 p.m. on October 28th, 2011. We’ve heard a couple of beeps, right?
A. Yes.
Q. We have no idea what those beeps mean or what they are, because we can’t see the display and you weren’t in the breath room to see what was coming up on the display when those beeps were happening, right?
A. Yes.
MR. BISS: Could we continue, please?
DVD PLAYING....
MR. BISS: Could we just stop there for a minute, please?
DVD STOPPED....
MR. BISS: Q. Now Constable, you have Mr. G in the breath room and you have an opportunity to observe him.
A. Yes.
Q. That’s at 10:42:50 p.m. Prior to this point in time, he was in the cells, right?
A. Correct.
Q. You didn’t have any video monitor from the breath room to look out and watch what was going on in the cells?
A. No.
Q. You couldn’t keep him under observation.
A. No.
Q. You couldn’t watch him to see if he was burping or belching or regurgitating or anything like that?
A. No.
Q. Was there some other police officer who you had asked to watch Mr. G while he was in the cells?
A. No.
Q. You didn’t specifically delegate the job of, for the 15 minutes prior to me doing a breath test, that someone keep him under observation to make sure he’s not vomiting or anything like that?
A. No, that’s not a common practice.
Q. It’s not common practice. You’re not talked – you’re not taught anything about there being a 15 minute period before an Intoxilyzer 8000C test of watching out for signs of regurgitation, belching, wet belches, burps, things like that?
A. I thought – I thought you meant us telling someone to watch the – like, in the cell area? We don’t get someone to watch them in the cell area. If I would have heard him vomiting from outside the door, I obviously would have known he was vomiting or burping but I didn’t hear any of that.
Q. But you – you weren’t even following a check-list of the things to watch out for like belching and burping and regurgitating. You – you didn’t have an Intoxilyzer qualified technician’s alcohol influence sheet or any document like that...
A. No.
Q. ...you were using as a check-list. Nothing like that?
A. No.
Q. So you’re not observing him and nobody else is observing him. In – and for part of the – part of the time in the 15 minutes before the breath test he’s in the cells and could you just double check in your notebook; for part of that period of time, he’s also talking to a lawyer on the phone?
A. Yes, he would have been in the private room to make a phone call.
Q. Right. You weren’t watching him while he was in the private room to make a phone call?
A. No.
Q. I mean, you were paying attention to the machine. We just saw you paying attention to the machine.
A. Correct.
Q. You were getting the machine ready.
A. Right.
Q. So there’s no – I mean, it seems pretty obvious that there’s no 15 minute pre-Intoxilyzer test observation period that was followed, either by you or by any other officer that you had delegated the job to, right?
A. Correct.
MR. BISS: All right, could we continue playing it please?
DVD PLAYING....
MR. BISS: Could we just stop there for a moment, please?
DVD STOPPED....
MR. BISS: Q. You’ve got the breath tube in your right hand. We’re at 10:43:55 p.m. October 28th, 2011. Why do you have the breath tube in your right hand, rather than coiled up on top of the Intoxilyzer 8000C?
A. Because I’m holding it in my hand, getting ready for the test to pass it to the test subject.
Q. Well, I thought that the purpose of an – I’m assuming that’s an air blank. The instrument’s sampling the room air. I thought that if the manufacturer had designed the instrument with a particular place for the breath hose, that the right place for the breath hose when it was sampling room air would be on the location where the manufacturer had designed it that way. So on the Intoxilyzer 5000C, that was back in the cradle. You know what I mean by that?
A. Mm-hmm.
Q. Mm-hmm is yes?
A. Yes, sorry.
Q. And on the Intoxilyzer 8000C it’s in that coiled space up on top of the Intoxilyzer 8000C? Why wouldn’t you have left it there for purposes of the air blank? That’s obviously the place that’s assigned for it.
A. I don’t have an answer to that. I’m sorry. It’s the way I do my breath tests. You take it out so they can like, have them blow through the mouthpiece to make sure it’s not obstructed and place it in the end of the breath tube and I wait until the instrument indicates please blow and then I pass them the breath tube.
MR. BISS: All right, continue playing, please.
DVD PLAYING....
MR. BISS: Can we just stop there for a moment?
DVD STOPPED....
MR. BISS: Q. It’s now 10:46:07, October 28th, 2011 according to the video. You’re about to have the subject blow into the breath tube. During the course of everything that we’ve seen so far, we haven’t seen you paying any particular attention to the simulator containing the alcohol standard, right?
A. Correct.
Q. And we haven’t seen you crouching down and looking at anything carefully or adjusting it or moving it or anything like that?
A. No. Basically, all you have to do is, it has a digital reading that it’s in the proper temperature range and when the calibration check is done, I can see that it’s in the proper range for the calibration test. I don’t inspect the simulator.
Q. Did you make a note anywhere in your notes about what the temperature was of the simulator on the display?
A. In my notes? No, I have to punch it in to the Intoxilyzer, asking what temperature is and I believe it was 34 degrees.
Q. Thirty-four? What does it – what does it say on the test slip?
A. Thirty-four – sorry?
THE COURT: What does it....
MR. BISS: Q. What does – what – what’s the temperature say on the test slip that you punched in?
A. Thirty-four. I punch it in.
Q. Correct me if I’m wrong but it says 34.00 degrees Celsius?
A. Correct.
Q. Is that what you typed in?
A. No, I just – it comes up on the instrument. It takes the numbers.
Q. It takes the numbers. So what did you type in?
A. I would have typed in 34.0.
Q. You typed in three-four period zero?
A. I don’t even think I type in the period, to be honest. I think once I type in the first two digits, it just sort of self-populates forward. If you understand that, Your Honour.
Q. So you just type in the – in the whole number; just the 34?
A. Correct.
Q. Not the – not 34.0, not 34.1, 33.9, 33.7 or any...
A. No, I....
Q. ...you just type in the whole number?
A. No, if – if it was 33.9, I would type in – or sorry, is that what you said? I would type in the 33 and then it goes forward. I don’t actually hit the decimal point and then I would hit the nine and that nine would....
Q. Well, I’m just – I’m just wondering if all numbers that are 34 – 34-point-whatever, all come out as 34.00 on the test strip. Or all numbers that are 33 come out as 33.00 on the test strip.
A. No, whatever – if there was a number to be put in after the decimal point, it would show there.
Q. All right, and in order to get that temperature that you input, what did you look at on the simulator?
A. I look at the digital thermometer reading that’s on the top of the simulator.
Q. You – you didn’t rely on any kind of electronic interface between the simulator and the Intoxilyzer?
A. Sorry, any....
Q. Any kind of electronic interface? Some...
A. There isn’t...
Q. ...some....
A. ...any.
Q. Some police services use an electronic connection between the simulator and the Intoxilyzer but you weren’t using that?
A. No.
Q. With a cable going between the two of them?
A. No.
Q. You were just looking at the simulator?
A. Just look at the screen what it says the temperature is.
Q. Okay, but you just look at the screen. You didn’t look at a mercury thermometer?
A. No.
Q. And the reason why I ask you that, is some – some police services – actually, can I ask you this; you – you were trained on the Intoxilyzer 5000C?
A. A long time ago, yes.
Q. All right. Now, when you were using an Intoxilyzer 5000C, they used, usually, a Guth 34C simulator, right?
A. Yes.
Q. Do you remember that?
A. Yes.
Q. And they had a mercury thermometer in them that you had to look at, right?
A. Yep.
Q. Now, if I can just show you this. This is a photograph from – I’m going to show you a photo of a simulator. It’s from a different police service. This is from [another] Police and this is from another case where we took photos inside the breath room. It’s a photograph of a Guth 2100 simulator and is that the kind of simulator you think you were using?
A. Yes.
Q. Great. A Guth 2100 simulator and that particular Guth 2100 simulator had a digital display in the black rectangle that’s up here.
A. Correct.
Q. Okay? On the face of the simulator.
A. Yes.
Q. And it also had an electronic cable and you just said that in your case, you didn’t have this electronic cable?
A. No.
Q. Right? And it also had a yellow mercury thermometer that went down into the – into the jar, just like the Guth 34C’s had, right? You remember...
A. Yep.
Q. ...those and the...
A. Yep.
Q. ...Guth 34C’s? That’s the older simulator...
A. The 5000 days.
Q. ...you used with the 5000C’s, okay? But my point is that the simulator that you were using on that day, all it had was a digital display. It didn’t have any kind of mercury thermometer going down into the simulator at all.
A. I don’t recall. I don’t think it does but....
Q. Because, of course, the next question I’m going to ask you is that if – if there was one, did you check it?
A. If there was one, no, I did not check it and I just look at the digital display for the temperature. That’s what I’ve always done.
Q. Right. Now, how do we know that the digital display is reliable on these things? I mean, are there any quality control steps that you take, just as a – a...
A. No.
Q. ...conscientious qualified technician, to make sure that this – what you see on the display is – is reliable?
A. No.
Q. All right. You have no experience with comparing that against a mercury thermometer or...
A. No.
Q. ...anything like that?
A. No.
MR. BISS: Your Honour, since I’ve referred to it, should we make it an exhibit?
THE COURT: Seven.
MR. BISS: And this is a photo of a Guth 2100 simulator from [another] Police.
EXHIBIT NUMBER SEVEN: Photo of a Guth 2100 simulator. Produced and marked.
MR. BISS: So perhaps we can continue playing the video.
DVD PLAYING....
MR. BISS: Can you just stop there, please?
DVD STOPPED....
MR. BISS: Q. We’re now at 10:48:35 p.m. The subject has just provided its subject test. The subject has just blown into the Intoxilyzer and correct me if I’m wrong but the instrument must be now at the point in time where it’s analyzing the sample? Put something up on the display?
A. No, it would analyze the sample when I took the breath tube away from him and he said – I said it was a sample. As soon as he’s done blowing and it accepts – as soon as it accepts it, it comes up on the screen.
Q. Right, so what’s come up on the screen at this point? You’ve left the room. Is everything all finished with respect to the first breath test?
A. Yes.
Q. There’s nothing else to happen on the instrument? The instrument isn’t going to go through any – anything further that we’re going to hear on the video with you out of the room and the subject out of the room?
A. It asked me if there was a suitable sample...
Q. Have you entered in whether it’s a suitable sample or not?
A. I didn’t see myself hit the button, no.
Q. So you haven’t yet typed into the instrument whether it’s a suitable sample or not? You haven’t entered that maybe?
A. Not that I saw that. I didn’t see myself do it.
Q. So the instrument’s just left holding. The instrument’s not doing anything and you’ve left the room. The instrument’s analyzing the sample....
A. No, it’s already been analyzed.
Q. And it’s giving you a choice on the screen of suitable sample, yes or no...
A. Correct.
Q. ...and you’ve just left the instrument hanging?
A. Yes.
Q. And you’ve left the room with the subject.
A. Yes.
Q. And – all right. And just in terms of time frame, exhibit three point – the long one, 3.2 I think it is?
COURTROOM CLERK: Yes.
MR. BISS: Q. Exhibit 3.2 shows a time for the subject test of 23:00:15 and this display shows 10:48:35 p.m. So it looks like between the video and the printout, there’s a difference of perhaps somewhere between 11 and 12 minutes? Have I got that right?
A. Correct. The time on the printout is the time of the clock on the Intoxilyzer.
Q. Yes.
A. And the time you see there is the breath room video, through the video surveillance system.
Q. So the time on the Intoxilyzer was wrong?
A. No, I wouldn’t say that. I would say the time on the Intoxilyzer is correct. Maybe the time on the video is wrong.
Q. Well, I thought that there was one of the things in your protocol that you were supposed to follow as part of your shift and before you began a breath test to make sure that the time is right on the Intoxilyzer?
A. Yes, but as per this video, there’s no way I can even tell you what time it is on the video. It’s – it’s got nothing to do with me. If there’s a video camera up that’s in the breath room.
Q. All right. So my question is, did you check the time on the Intoxilyzer before you started the breath test on Mr. G? I think it’s one of the things in your protocol you’re supposed to do.
A. I would have seen the time on the display. I mean, if I would have looked at it and seen it was out by hours and hours, obviously I would have had a concern but I see the time to be approximately the time that it is, I have no concerns with that.
Q. All right. Could you turn to page 7-19 of your training aid?
A. Yes.
Q. The bottom half of the page.
A. Yes.
Q. See the bottom half of the page?
A. Mm-hmm.
Q. It says before conducting a breath test on a subject ensure that – and then there are boxes beside the numbers one, two and three, right?
A. Yes.
Q. And there’s a big stop sign to the left of that, right?
A. Correct.
Q. All right. And I gather the stop sign means that it’s something important?
A. Correct.
Q. What does – how does number one read?
A. About the alcohol standard. The alcohol standard solution in the simulator is suitable for use by checking the calibration and alcohol standard log for the instrument and the certificate of analysis.
Q. Right. And did you do that in this particular case?
A. No, I did not check the alcohol standard log.
Q. Right. What’s number two?
A. The time and date of the instrument are correct by checking the digital display. The only way – like I said, sir, it flashes up. It has the date and the time up there. I know – I can see the date is right and if it told me it was four o’clock in the morning and I knew it wasn’t four o’clock in the morning, I knew there’d be a problem with the clock but I didn’t deem there to be a problem with the clock.
Q. Well the protocol is, you’re supposed to check the time and date on the instrument and make sure that they’re correct by checking the digital display and I would have presumed you would do that with a watch or with a clock on the wall or something like that. Did you do that?
A. I did it by looking at it. I – there’s nothing for me to compare it too. I can’t compare it to the time line on the video.
Q. Well, you could have compared it with a watch or a clock on the wall.
A. I could have compared it to my watch but like I said, if I know it’s one o’clock and it says it’s one o’clock, if it would have shown me concern by saying four o’clock in the morning then I would have been concerned about it.
Q. All right and what about number three? What’s that say?
A. That the subject has not consumed alcohol or been - placed alcohol substances in their mouth for 15 minutes prior to a breath test. It’s not necessary for the probation period to occur in the presence of a qualified technician. It may occur while in the custody of another police officer.
Q. And your evidence is that you didn’t ask another police officer to watch Mr. G.
A. No, I did not ask another police officer to watch him to see if he was consuming alcohol.
Q. And you didn’t – you didn’t watch him yourself for the 15 minutes prior to the first breath test.
A. No but when he was searched and placed in police custody in the cells, he didn’t have any alcohol on him.
Q. But you didn’t – you also didn’t watch him for any burping or regurgitation or belching or vomiting or anything like that. We already talked about that.
A. Correct.
MR. BISS: Could we continue playing?
DVD PLAYING....
MR. BISS and could we stop again, please?
DVD STOPPED....
MR. BISS: Q. It’s now 10:49:00 p.m. October the 28th, 2011. The pump is still running. The instrument is still running. As I understand it, the breath test sequence for the first subject test. Am I right in saying that?
A. What – no I – what’s happening there; I believe it’s doing a blank test to clear itself out for – prepare for any other tests.
Q. It’s doing an air blank...
A. Yes, sorry.
Q. ...where the instrument is seeing if it can purge itself...
A. Correct.
Q. ...of all of the alcohol...
A. Inside it.
Q. ...that’s inside the instrument, in relationship to the room air.
A. Correct.
Q. That’s what goes on in that air blank?
A. Right.
Q. And you’re not in the room to monitor the instrument doing that at all.
A. No, I’m not.
Q. You just came in, pressed the key that said yes for suitable sample and left the room, right?
A. Yes.
Q. And just left the instrument to run on its own and we can’t see what it says on the display on the Intoxilyzer 8000C, right?
A. No, you cannot.
MR. BISS: Play it again please, briefly.
DVD PLAYING....
MR. BISS: Just stop it again, please.
DVD STOPPED....
MR. BISS: Q. So it’s now 10:49:36 p.m. on October 28th, 2011, according to the video. The instrument’s pump has stopped running and we’ve heard a beep. You’re not in the room and we have no idea what may have come up on the screen for the purposes of that beep, right?
A. Correct.
MR. BISS: Could we play it again please, briefly?
DVD PLAYING....
MR. BISS: Can we just stop it again there, please?
DVD STOPPED....
MR. BISS: Q. Constable, it’s now 10:50:33 p.m. on October 28th, 2011. You’re still out of the room. You’re not in the breath room. You nodded yes?
A. Correct, yes.
Q. The instrument seems to have completed all of its cycle and it’s beeped but no paper tape has come out of that instrument yet that looks at all like exhibit 3.2.
A. Correct. You don’t get the test strip printout until both tests are completed
Q. All right. So at this point in time, you’ve left the room and you’ve gone and done something else?
A. Yes.
Q. All right. So if we’re to move to the second breath test – and I’m in Your Honour’s hands as to when you want to take the lunch break.
THE COURT: Yes, that’s probably a good time.
MR. BISS: And then maybe what we’ll....
THE COURT: The next step is....
MR. BISS: The next step is the second breath test.
THE COURT: So we’ll take the lunch then until two o’clock.
R E C E S S
...
MR. BISS: Q. All right. Constable, page 7-18 of your training aid?
A. Yes.
Q. What does it say under the heading Introduction? The paragraph – two paragraphs there that say something to do with introduction. What does it say?
A. The Intoxilyzer 8000C is a fully automated instrument that allows for a complete breath test to be conducted at the push of a button. The qualified technician however is ultimately responsible for quality of breath tests. Qualified technician must ensure that the instrument is operating properly, breath samples of suitable quality have to be provided. Thus, while the instrument performs all the steps in the breath test sequence, automatically the qualified technician must understand each of the steps and monitor the outcome to ensure that the breath test has occurred properly.
Q. Right. Thank you. So that’s in your Intoxilyzer training aid, 2009 from the course that you took?
A. Yes.
Q. And so your understanding of that is that it’s your responsibility to understand each of the steps that the instrument is taking and to monitor those?
A. Yes.
MR. BISS: Then, if we’ve cued it up to 11:09 p.m., could we start at 11:09:07 on October 28th, 2011?
DVD STARTED....
MR. BISS: Now, can we just stop there for a moment?
DVD STOPPED....
MR. BISS: Q. Now, we’ve heard the instrument beeping as you’re coming in to the room. Can you help us there and tell us what it was exactly that the instrument was doing? What those beeps were?
A. Once it finishes every one of its internal testing procedures, it beeps to move on to the next one.
Q. So it’s some beep from some test that the instrument is running but you can’t identify specifically what it is?
A. What exact – what test that was right there? No I can’t. I can’t see the screen.
Q. All right.
MR. BISS Perhaps, Mr. F, we could go back about – maybe we should go back about four minutes. I’m sorry, I gave you a prompt that was perhaps just a little bit too late. So if we could go back to 11:05? Why don’t we start there?
MR. F: Do you want me to go back again?
MR. BISS: No, I think we’re okay here. I apologize if....
MR. : So it’s 11:06:36.
MR. BISS: Perhaps we could just let it play for a moment.
DVD PLAYING....
MR. BISS: Q. Maybe I could just ask you, while nothing is happening on the – on the video. Constable, at about this point in time, preceding the second subject test, do you recall specifically what you were doing with – were you doing something with Mr. G? Were you busy doing something else? And where was he?
A. He would have been in the cells, waiting for the second test.
Q. Were you making a point of keeping him under observation during that period of time?
A. No.
Q. You – you weren’t watching him for signs of any kind of regurgitation or belching or burping or anything of that nature?
A. No, that’s negative. I was not.
Q. I’m sorry?
A. No, I was not.
Q. And he was in the cells?
A. Yes, he was.
Q. And there weren’t any other police officers supervising him during that time?
A. Not that I’m aware of.
Q. And Officer, it appears you’ve come into the room at 11:08 about 35?
A. Yes.
MR. BISS: And if you can just stop there, please?
DVD STOPPED....
MR. BISS: Q. So it’s 11:08:51 on video and you’ve started the instrument running for the second breath test sequence and the instrument is starting probably with an air blank. Am I right in saying that?
A. I actually think what we’re watching right now is one of - the time that you’re talking about is - at this time, I remember that I forgot I did the calibration test and I’m doing a calibration test right now.
Q. So this is a calibration check?
A. From the time on the print test card of the calibration there it looks like that’s apparently probably what I’m doing because it started up pretty fast. I would assume that’s what is happening right now.
Q. So you’re running a stand-alone calibration check?
A. I believe so.
Q. And you think that’s the exhibit 3.1 document?
A. Yes. If we continue to watch the video, I can tell you exactly if that’s it or not.
MR. BISS: If we can play it then, please?
DVD PLAYING....
MR. BISS: Can we just stop for a second?
DVD STOPPED....
MR. BISS: Q. So just to confirm, it’s 11:09:09 p.m. and you’ve left the breath room?
A. That is correct.
Q. While it’s running what you think is a stand-alone calibration check?
A. At the moment, I think it is. I really don’t know. I – I don’t know if it’s happening right now.
Q. You’d agree with me at this point, you’re not mon – you’re not looking at either a calibration check on the screen of the Intoxilyzer or looking at the simulator for a temperature?
A. Correct.
MR. BISS: If we could play it again, please?
DVD PLAYNG....
MR. BISS: Stop there, please.
DVD STOPPED....
MR. BISS: Q. It’s 11:09:30 p.m. and you and Mr. G have entered the breath room?
A. Correct.
MR. BISS: Could we continue to play it, then?
DVD PLAYING....
MR. BISS: Can we just stop there?
DVD STOPPED....
MR. BISS: Q. We just saw you doing something on a keyboard?
A. That would be me entering the temperature of the alcohol simulator.
Q. And this is still – is this still part of the stand-alone calibration check?
A. No, it is not.
Q. This is...
A. This is....
Q. ...something different?
A. This is the second breath test.
Q. So we’re not – we’re not watching a stand-alone calibration check?
A. No, you are not.
Q. All right. So this is the second breath test and you’ve just entered in a temperature?
A. Yes.
MR. BISS: Will you continue to play, please?
DVD PLAYING....
MR. BISS: Can we just stop for a moment, please?
DVD STOPPED....
MR. BISS: Q. We are now at 11:15:11 p.m. and Mr. G has just provided a second breath test into the instrument and it looks from what you’re doing as if the instrument has accepted that sample?
A. Correct.
...
MR. BISS: Yes, could we try for 11:13 p.m. And if you can just stop there. That’s good. And just before we play here, we’re starting at 11:13:54 and I believe it’s – it’s what we saw earlier with respect to the second breath test. I just want to take the video a little further and if we could start from 11:13:54, please?
MR. F: So start it now?
MR. BISS: Yes, please.
DVD PLAYING....
MR. BISS: Stop there, please.
DVD STOPPED....
MR. BISS: Q. At 11:15:46 the pump was still running on the Intoxilyzer for completion of the second breath test sequence. Mr. G has left the room; you’re not paying any attention to the Intoxilyzer 8000C. Am I right?
A. Well, when you say it’s – it has had it’s sample given to it, it has accepted its sample.
Q. The pump was still running.
A. It’s doing an air blank when the pump’s running.
Q. The pump was still running. It was doing its air blank.
A. Yes.
Q. And while it was doing its air blank, you turned away from the Intoxilyzer and you’re looking in the opposite direction and you’re speaking to another officer.
A. That is correct.
Q. And not only that but you turned the sound off in the breath room, so that we don’t have any recording of the sound of the Intoxilyzer at this point in time, right?
A. I turn it off – you make it sound like I did it intentionally for that purpose but I did not.
Q. Could we just back up again to about 11:15:30 and play it again? So we’re at 11:15:30 – or 11:15:28 p.m. Just let it play from there.
DVD PLAYING....
MR. BISS: Can you just stop there, please, at 11:16:31 – or 33 – 11:16:33 p.m.
DVD STOPPED....
MR. BISS: Q. You’re back. You’re doing something with the Intoxilyzer, Constable but the sound is turned off and you can’t tell us what you’re doing to the instrument at that point in time?
A. It looks like I was taking out the print test card out of the....
Q. You don’t know if you’re running any further tests on the Intoxilyzer at that time, of any kind?
A. I can’t recall. At some point I did a calibration check because we have the print out here, even though it’s difficult to read. So maybe that’s what I’m doing at this time. I don’t know.
Q. Can you play it a little bit further, please, beyond 11:16:33?
DVD PLAYING....
MR. BISS: Stop for a moment.
DVD STOPPED....
MR. BISS: Q. We’re at 11:16:58 p.m. If what you’re doing is running a calibration check, you’re not even in the room while the calibration check was running.
A. If that’s what’s happening, you’re correct. I’m not in the breath room.
Q. Okay, we’ll play it a little bit further, please.
DVD PLAYING....
MR. BISS: If you could stop there, please.
DVD STOPPED....
MR. BISS: Q. Well, we’re at 11:18:03 p.m. We never saw you pull an Intoxilyzer test record strip out of the Intoxilyzer. The document that’s been marked as exhibit 3.2 I believe it is, the longer one, in court. Can you help us there? When – when did you take that test card out of the Intoxilyzer?
A. Well, I would have taken it out after the second test, because that’s when it’s printed out.
Q. And could that have been at the point in time when you’re talking to the other officer or did we miss something in looking at the video?
A. The only way we could have missed something is if when you see my back I pulled it out and I have it in my hand but – I couldn’t’ see that but obviously it printed out and I have it. I can’t see it in the video either.
[The Crown shortly thereafter offered a careless driving resolution.]
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