I’m Richard Aitken, I’m one of the criminal lawyers at Aitken Robertson, we do DUI and criminal law in Oshawa and indeed through most of southern Ontario. Today we’re at our Oshawa office, which is three blocks east of the courthouse.
What I have in front of me here is the Intoxilyzer 8000 which is manufactured by CMI Incorporated. This is the same sort of instrument that you would see at the Oshawa police station or indeed any police station in Ontario and throughout North America as well. Next to the Intoxilyzer is a simulator instrument. What the simulator does, it sort of mimics your lung air. Fluid is put in here of a known standard, which is 100 mg of alcohol in 100 mL. It goes into the machine, the machine measures that and if the machine detects this at 100 mg we would know that the instrument is working properly. So long as the reading is between 90 and 110, the instrument would accept it. While the instrument is fairly reliable, there are some problems that can happen, for instance if the thermometer on the simulator is not working you will not get a proper result. In breath testing the biggest variable is biologic variability.
The science is such that it’s assumed that for every one molecule you have of alcohol on your breath, you will have 2100 molecules in your blood. The problem of course is not everyone is the same, some people will be low, some people will be high, and on the extreme arch on either end you’ll see a difference of 100%. So that would show you that at some readings, perhaps at 80 mg, some people who are actually in fact under 80, will show over 80, and some people who are actually over 80 in reality will show under 80. One of the other major biological variability issues deals with fever. You have a one degree Celsius fever, it will increase the result 6.5%. Now that’s not going to matter at all if you blow 200 mg, but if you blow 81 and the Crown decides to prosecute, it’s a big deal.
This is a really rare machine, it’s the most valuable piece of product we have at Aitken Robertson. The reason it’s so valuable is because hardly anyone has it. CMI, the manufacturer, will not sell it to defense lawyers or defense toxicologists, there’s only about 12 in the world who are not owned by police departments, or state testing facilities, I believe there’s two in Canada who have an operating 8000, we’re one of them. If we see an error, it puts us at a distinct advantage, I’m able to see the Crown attorney, point out the error, perhaps get the charge withdrawn or reduced to careless driving. If the matter proceeds to trial, it makes it very useful during cross examination, where we can point out to the breath tech what he or she did wrong, what the instrument failed to do, or did poorly.