We first wrote about it here. If you are unlucky enough to be charged with blowing over 80 mg% in West Vancouver in the last few months, you have already seen this machine.

Other police departments and RCMP detachments will be acquiring them. We know this because the Justice Institute no longer offers training to police officers hoping to become qualified technicians on the Datamaster. The only training offered is for the Intox EC/IR II. This training is only offered to police officers. Independent forensic consultants, Crown counsel, and criminal defence lawyers like ourselves are not permitted to take the course. We think that’s unfair. But that’s another blog post.

The question is whether the Intox EC/IR II the right breathalyzer for BC. We we were able to obtain a copy of the manual long before any other law firms and long before it was even in the Court Library. We’ve read the manual and we’ve thought about potential problems with this machine and other breath-testing equipment. And we aren’t the first.

In Georgia, the government was concerned about the breath testing equipment that was being used to analyse samples from drivers suspected of being over the legal limit. The Georgia Bureau of Investigation Crime Laboratory conducted a thorough study in an effort to determine which instrument was best able to produce reliable and accurate alcohol readings. The GBI Crime Lab was looking for a replacement for the Intoxilyzer 5000 (which we also have in our office) which is currently in use in their state.

There are dozens of instruments on the market designed to detect blood alcohol level. Of these machines, the GBI Crime Lab narrowed it down to three possible models: The Intoxilyzer 9000, the Evidenzer 240 Mobile, and the Datamaster DMT-GF.

In Georgia they didn’t even consider the Intox EC/IR II. The report does not include the reasons why it wasn’t considered.  It seems that they ruled it out because it simply didn’t meet the basic criteria for selection. Although the Intox EC/IR II is new to Canada, it has been on the market for 8 years and only a handful of jurisdictions bought them.

Of the three instruments evaluated in the Georgia study, the Datamaster DMT-GF most closely resembles the Intox EC/IR II. It was the only two of the three that used a combination of fuel cell and infrared (IR) technology to detect and measure alcohol levels. One would think that with such sophisticated technology and two methods of measurement the Datamaster DMT-GF would be the instrument of choice. Surprisingly, it scored the lowest of all three by the criteria set for the study.

The study conducted by the GBI Crime Lab was released in September. We first learned about it in October at one of the impaired driving conference we attended in the U.S. We obtained a copy and have read it over to determine why the dual-analysis instrument scored so poorly. The reason? Fuel cell stability caused the instrument to lose points in many categories overall.

Don’t forget: the breath testing equipment used in IRP cases relies ONLY on fuel cell analysis. Still feel comfortable with that scheme? We don’t.

The Datamaster DMT-GF received a little more than half the score obtained by the Intoxilyzer 9000 and was 150 points behind the Evidenzer 240 Mobile. This was due to the fact that the machine did not have desired specifications to make breath testing optimal (for example, the Evidenzer 240 Mobile can heat up the mouthpiece, making the possibility of a temperature issue less likely). But the largest concern identified by the GBI Crime Lab study was the stability and performance of the fuel cell.

The breathalyzers were scored across seven categories, which included specification review, a literature review, customer evaluations, manufacturer evaluations, legal opinions, potential modifications, and a cost-benefit analysis.

In the specifications category, the following factors were assessed: detection system, diagnostic criteria, operating criteria, optional equipment, performance criteria, sampling criteria, and software capabilities. Out of a total 237 points, the Datamaster DMT-GF scored only 157. Some of the reasons the instrument lost points included the fact that it was not sensitive enough to exclude other compounds or mixtures that can cause a false reading. This is something that we remain concerned about with both the BAC Datamaster C and the Intox EC/IR II, never mind the Alco-Sensor IV DWF which is only designed to be a screening device. The instrument also had a poor data sampling rate, and its IR system used only reflected IR paths. This increased the likelihood of error in obtaining the readings.

The breathalyzer also suffered in the diagnostic criteria category due to the fact that it had difficulty purging the sample chamber and was unlikely to obtain a “true zero” reading when doing a blank check. This is very important to reliable testing because alcohol left in a sample chamber can cause falsely elevated readings in an otherwise innocent person. With respect to its operating criteria, the operating and storage temperature ranges were insufficient. Given that fuel cells in the Alco-Sensor IV DWF have only a 30 degree operating temperature range, we wonder if this isn’t a problem that is directly linked to the presence of the fuel cell itself.

The study indicated that when operating properly the Datamaster DMT-GF performed well. The problem was that there were numerous error messages obtained during laboratory testing. Not surprising to us is the fact that the errors were primarily caused by disagreements between the fuel cell and the IR system. We wonder how many innocent people will be charged with refusal when the Intox EC/IR II experiences similar errors for similar reasons? It is important to us that the Intox EC/IR II does not indicate what reading was obtained on the fuel cell, only the reading as detected by IR.

In particular, we noted in the appendix that during the calibration check the Datamaster DMT-GF could not complete the full calibration check due to a repetitive blank error. We have expressed before some concerns that we have about the potential of a fuel cell to retain alcohol after the subject test. We have demonstrated this in our office and have seen it on calibration check sheets we obtained for the Alco-Sensor IV DWF through Freedom of Information Requests. This is a serious concern that could result in otherwise innocent people facing criminal charges.

Ultimately, the Datamaster DMT-GF failed because of the dual-analysis. This makes us question whether the Intox EC/IR II is the right breathalyzer for BC. Or whether there is a right instrument at all.

We discovered a few things that apparently nobody knew. For one, the Alco-Sensor IV used in Canada can retain alcohol on the fuel cell from a previous subject. We also confirmed that mouth alcohol can cause a false Fail in excess of 20 minutes from completing the last drink, contrary to contemporary police training. We could go on for days about calibration.

The breathalyzer tests or experiments that we almost never conduct concern ways in which you could beat the breathalyzer.

We know about the theories out there for ways to beat the breathalyzer, i.e. to have the device record a lower than actual blood-alcohol content. We also understand why people would like to kill the breathalyzer. But beating the breathalyzer has never been a big issue for us. Our job is to defend drinking-driving cases. We prefer to discover ways in which the reading is artificially high, rather than figuring out ways to make it artificially or otherwise low.

Still, it’s a question we are regularly asked: how can I beat the breathalyzer, i.e., can this or that method lower my reading. So, in the spirit of scientific discover, we intend to try out some of the theories that are often mentioned, others we’ve considered ourselves and some that seem to have gained traction, such as the peanut butter method in this YouTube video.

Admittedly we approach this with some bias (something supporters of the IRP scheme seem incapable of admitting) because we know how easy it is to get inaccurately elevated readings. We don’t think there is much, if anything, that you could do to generate artificially low breathalyzer tests. But we’re going to try.

And now, this is your chance to send us your theory. If we try it, and we probably will, we promise to report back.

Send us an email with your ideas on what could create artificially low or artificially high breathalyzer tests and we’ll try it out later in the week.

We intend to use a few Alco-Sensor IVs, an Intoxilyzer 400, at least two of our BAC Datamaster C instruments (the big beige unit in the police stations), an Intoxilyzer 5000 (used in Alberta and Ontario) and even one of our two antique Breathalyzer 900 units if we can get it going. And perhaps some other police issue breathalyzers that we find lost in the back of drawers around the office.

We will report on our results here on our blog.

Salud!

What astounds us is that we figured out the problem in a matter of minutes and then confirmed our findings in less than an hour. It’s been over six months that you have been paying for the New Westminster Police to investigate the issue. What’s up with that?

We suspect that they’ve been going through each and every file to try and find some way to isolate the damage to the Port Moody force and the reputation of the Immediate Roadside Prohibition (IRP) scheme. Rather than coming clean, notifying everyone potentially effected and letting all of the potentially effected people take steps themselves to deal with their case, it seems that whoever is responsible for this has been busily working to try to minimize the public relations damage.

So, instead of protecting the innocent, they are working at protecting themselves. So much for serving the community.

About ASD calibration:

We noticed in some disclosure documents from Port Moody that, when they tested their Approved Screening Devices after we brought this whole thing to the fore, two of their ASDs could not be calibrated and were then sent off for service. Only a few weeks earlier they seemed to be working fine. What’s up with that?

Well, as you may know from reading this blog, the ASDs used in BC are to be tested for calibration every month. When the AlcoSensor IV was introduced, the manufacturer said to test them every two weeks. Back then we used the same time frame here.

Then the time frame was stretched to a month. The reason was simple. Some are out of calibration right away, some are out after two weeks, but the difference in the number out of calibration after two weeks as opposed to after a month wasn’t particularly great. So it seemed okay to start testing them for calibration on a monthly basis.

Yes, some are out of calibration right away. Some rarely give accurate results, and strangely some units seem to work nearly perfectly all of the time. Important to note, however, is that the decision to adopt a one-month period was based on the fact that the AlcoSensor IV was not to be used to justify punishment. It is a screener.

As a screener, 30 days makes sense. If it’s wrong, then later tests on a BAC Datamaster or Intox EC/IR II will clear up the mistake.

The problem is as of June 15, ASDs will again be used as the only evidence relied on to hand out immediate harsh punishment without any trial. On the basis of a potentially faulty device, you are immediately found guilty. You must then prove your innocence.

And the other problem is, instead of using a single ASD 10 or 15 times over the course of the month, the police may use one unit 1000 or 1500 times in a month under the IRP scheme.

Slogging to get disclosure:

You can’t imagine how hard it has been in some cases to get disclosure from certain police forces of their ASD records. In May we received documents from the Vancouver Police that we requested in May 2011. It took a long time to get them to give us what we asked for, but we are tenacious. The credit in this case goes to Kyla. She has put in countless hours to get this material and then many more going over what we’ve received.

Here is the sad story: in the very first file we reviewed with the benefit of the full ASD records it is clear without a doubt that BOTH of the devices used by the VPD were malfunctioning.

This person is innocent. He has paid all of the fines, paid for and taken the RDP and driven with an interlock for many months. He is innocent.

Historic records and subsequent records:

There are, of course, the records of how a unit functioned in the past and how it is found to function on a later date. Both are important, but with IRPs, even with the new scheme that comes into effect on June 15, 2012, there is not and never will be an opportunity to review subsequent records. The punishment starts before the hearing, and the information concerning subsequent malfunctioning of the unit will not be obtained until after you are found guilty by the OSMV. Obviously this doesn’t even remotely approach fairness. What’s up with that?

As we have pointed out, our Government is not interested in fairness. And the opposition is not interested in saying anything that might alter their near-certain success in the upcoming election.

Here is an excerpt from a subsequent ASD maintenance record showing that some devices could not be calibrated upon their monthly test, and others that showed “Void” i.e. wrongly indicating to the officer that the subject was refusing to blow.

If your matter is already under appeal, i.e. we have filed a Petition in Supreme Court to challenge your 90-day Fail IRP, then we will use this disclosure where necessary and pursuant to your instructions to get you the best result in your case.

If you are not our client at the moment, but you received a 90-day IRP for Fail in Vancouver and you want us to check if you were innocent, give us a call.

A moment of clarity may come in the shower. This is the point when most people conclude ” I need to get a lawyer to look at this.”  An hour later most people dig out their papers, look them over and then give us a call.

Each of the papers the police give you are important and it can be essential to the case that they are preserved as closely as possible to the condition they were in when the police slide them over the counter to you. So do not write on them, or set your coffee on them.

In all criminal impaired driving accusations, the police issue the subject a 24-hour driving prohibition pursuant to section 215 of the Motor Vehicle Act. This document is the size of a Violation Ticket. It notifies the driver that they cannot drive for 24-hours. This period runs from the time and date recorded by the officer.

The confusing thing about the 24-hour prohibition is that the document suggests that you can collect your BC driver’s license at the police station the following day. If you also have an ADP, this is not the case. Many BC police officers explain this incorrectly which causes confusion. If you have a 24-hour prohibition and you also have more papers, do not go to the police station to try to get your license back. If you are unsure about where you stand in the procedure, speak with a criminal lawyer before you do anything.

In Over .08 and Refusal to Blow allegations you do not get your license back. The blue sheet of paper entitled “Administrative Driving Prohibition” or “ADP” serves as your driver’s license starting at the end of the 24-hour prohibition and lasting 21 days from the day the police gave it to you. The document also notifies you that when the 21 days are over, you are prohibited from driving for 90 days.

Most of this is explained on the document, along with the 7-day period in which to file an application for review of the prohibition. What is not explained is that the 90-day prohibition is not the end of the matter. When the prohibition is over, you cannot get a license until you are on your way to completing the Responsible Driving Program. And then, your license will contain a restriction wherein you can only drive a vehicle with an interlock.

The most important, irreplaceable sheet of paper is the Certificate of Qualified Technician (blank sample). If you have been arrested for driving over 80 mg in 100 ml (.08 mg%), this is more important than the Shroud of Turin (which is likely a phoney in any event). It is the document that has your Blood Alcohol Content or BAC, usually as recorded on a BAC Datamatser C breath-testing instrument.

The Certificate of Qualified Technician is evidence itself and the form in which you have it and received it may be important for your case. Do not show it to anyone, or return it to the police if they ask for it, or put a mark on it of any sort. A copy of the document is insufficient. You must give the actual document to your criminal lawyer.

On Tuesday we will discuss the final documents that are typically served, including the documents that compel attendance at court and accident reports. If you or your loved one has been arrested for impaired driving, over .08, or refusal to blow, call us as soon as possible so we can make a plan to deal with the case.

The device performs the same function as the BAC Datamaster, i.e. analyzing the alcohol content in breath exhaled into the instrument and then calculating a blood/alcohol concentration. But this unit employs 2 methods of analyzing the sample. Like the BAC Datamaster, the device has an infrared sensor to measure the diffusion in a chamber containing a captive sample of breath. It also has an electrochemical fuel cell, like the Alco-Sensor IV to provide a second quality check.

The reason that this is considered an advancement is because infrared analysis cannot always differentiate between alcohol and other interfering chemical compounds. The electrochemical fuel cell devices are not known to mistake interfering substances with alcohol.

You can expect a news report about this in the coming days. When the BAC Datamaster was introduced in the mid 90s, the police in BC gave interviews in which they claimed that their new device was infallible, that you could not question the readings and that it would eliminate all doubt in “over .08″ cases.

The police will claim that this new device is the ultimate machine. And they made the same claims about the previous breath-testing instrument. What they will not tell you is that in 2008 we identified and made public a problem with a valve in the BAC Datamaster. It is mentioned in a newscast here.

If you Google Paul Doroshenko BC Breathalyzers you will get a few hundred hits about problems we identified with fuel cell devices.

Despite the problems with the BAC Datamaster, it is very rare that a malfunction leads to an acquittal. Usually an over .08 charge is thrown out due to the police violating Charter rights, or not following the correct procedure in conducting their investigation. So in our view there is no justification to replace the BAC Datamaster at this time, particularly when our government claims that it does not have the money to properly fund the courts and legal aid.

We all get excited about getting a new toy. We can understand why the police are delighted about a fun new device. But it is expensive and this is our tax money they are spending. It would be nice to see them explain how many cases were unsuccessful at trial because of a failing of the BAC Datamaster. We doubt that more than a dozen cases turned on this issue in the last decade in British Columbia.

And of course, you read it here first: this device will also have problems. It may take a decade to identify the significant problems, but it is a truism that there is no perfect machine. Simply put, the new instrument is likely an improvement. But like any device, it can malfunction.

As a defence lawyer we cannot get these devices until they have been in service for a number of years, so it will be some time before we can examine the Intox EC/IR II, take it apart and figure out the potential problems. When we get one, it will probably take us a couple of months of looking at it and thinking about it before we find the weaknesses.

In any event, we doubt very much that it will have an impact on the conviction rate. Despite what the police may claim, it is simply another instrument that is very similar to the last. Both are designed to present the results in a manner that makes them look objective and reliable. Both are usually correct, infrequently incorrect and may not provide you with the information to say whether it is correct on a specific occasion.

Here are some links if you want to read further:

• Breathalyzer Accuracy and DWI/DUI Conviction Rates
• British Columbia Police Equipment Malfunctions
• Police documents question accuracy of B.C. breathalyzers