The Criminal Code of Canada says breath-readings are deemed to be accurate if the first test is taken within two hours of the time of driving. An accused person can undermine this presumption by showing the machine was operated improperly.

In the recent Ontario drinking and driving case of R. v. Paspaporn, 2015 ONCJ 734, the accused was found not guilty of over 80 and impaired driving.  The judge had doubts that the Intoxilyzer was working properly:

 44     The accused has challenged the Crown’s ability to rely on a statutory presumption on the basis that the instrument was not functioning properly or was operated in error. Test results are reliable only if instruments are operated and maintained properly. Evidence tending to cast doubt on the reliability of the results are indicative deficiencies in the maintenance of the instrument or the test process (see R v. St. Onge Lamoureux [2012] 3 S.C.R. 187).

45     The lack of annual inspections with a view towards proper calibration does not itself cause me to believe the instrument may not have been functioning properly. However, it’s noteworthy that the calibration check of 85 at 3:51 a.m. that fell outside of the acceptable range, occurred just 20 minutes before Ms. Paspaporn’s test was taken. It was part of the calibration check sequence undertaken and cause for concern about whether the instrument was functioning properly and perhaps owing to operator error. The crown points to the diagnostic steps included including air blanks and additional calibration checks before Ms. Paspaporn’s first breath sample was taken wtihin the acceptable target range as proof the instrument was functioning properly.

46     It seems to me that either one of these concerns standing alone in isolation might not be cause to believe the instrument wasn’t operating properly. However, what’s troubling to me is the additional fact that the qualified technician acknowledged the importance of his observational role to conduct external checks while the instrument was running through its sequences, and in particular in respect to calibration. To my mind, this is of particular importance in the absence of evidence of an annual inspection certifying that the instrument is operating in accordance with the manufacturer’s guidelines.

47     During the trial, Officer Anderson acknowledged that not only was there a calibration check outside of the prescribed target range, but he confirmed further that he was not aware of it occurred at the time. He testified that if he had seen this at the time, he would’ve been concerned. Based on the Center of Forensic Science’s Alcohol Test committee guidelines, he would have been required to terminate the sequence. That didn’t happen. Instead, the officer submitted that he had no issue in regard to the instrument functioning properly because it was his understanding that it would not receive a sample of Ms. Paspaporn’s breath if there was a problem. This to say, notwithstanding his training and acknowedged acceptance of the value in the procedural guidelines from the alcohol test committee published for the purpose of assuring accuracy and proper calibration of the instrument, he was prepared to rely on the fact that because the instrument indicated it was ready to receive a sample that it must have been functioning properly. It is difficult for me to accept this statement when jurisprudence has indicated the approved instrument are not infallible.

48     Although I received no further evidence about what next would have been required in the event the operator noticed the reading that was outside of the range and terminated the sequence, it’s clear something more would have been done as a consequence in order to ensure the instrument was operating properly and would produce an accurate result.

49     With his background, I have trouble finding comfort with a bald statement from the technician simply indicating he believed everything was fine because the approved instrument indicated it was ready to receive a sample and did in fact receive samples from Ms. Paspaporn that were analyzed and produced results. The best I could glean from this answer was that is this was his belief but it was not founded on anything more than his own belief.

50     It is my understanding the results of an analysis by an approved instrument will be reliable only if the instrument is operated and maintained properly. I believe on the facts of this case, the defence has gone beyond raising a suspicion about the reliability of the results. There are three important things that occurred. There’s reason to be concerned because the lack of proper maintenance, there was reason to be concerned because a calibration check fell outside of the target range, and there is reason to be concerned because the operator who was responsible to conduct external calibration checks missed the error. With all of this, there’s the testimony of the qualified technician who acknowledged that if he’d seen the 85 reading he would have been concerned. As such, the manual would have required him to terminate the sequence. That didn’t happen.

51     These facts taken together cause my concerns to embrace the probability that the instrument was not only operated improperly but that this error together with the concern raised about the lack of maintenance and the reading falling outside the target range suggests the instrument may also not have been functioning properly. The Crown submits that these concerns should be negated by the fact there was 2 subsequent calibration checks that fell within the target range before the breath samples were taken from Ms. Paspaporn. There is of course a certain attraction to that argument on its face, That is, because the instrument recorded a suitable sample for analysis, it must have been working fine. I’m not prepared to make that finding without more evidence from an expert who could speak to this issue definitively. The qualified technician is but an operator. His opinion about the proper functioning of the instrument at the time when it received the sample of Ms. Paspaporn’s breath are, in the circumstances of this case, not persuasive. He could offer no authoritative opinion to address or explain the consequences of any of these other concerns that I have set out. Accordingly, I am satisfied the accused has adduced sufficient evidence to raise a doubt about the reliability of the test results.

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