FAILURE TO CHECK THE TEMPERATURE RESULTS IN EXCLUSION

A charge of refusing a breath demand was dismissed for lack of reasonable grounds. The demand was based on a failed ASD but the officer could not say whether she checked the device's temperature prior to the accused blowing into it. The device was an Alcosensor IV DWF. During cross-examination, the officer admitted that there is a temperature range within which the device will function properly. She also acknowledged that if the device were outside the appropriate range, the sample would not be reliable. Unfortunately, the officer did not make a note about checking the temperature and could not say with any certainty that she had checked it. The court concluded that neither the subjective nor objective belief were met. R. v. Gill, 2011 BCPC 355

The defence called an expert who testified that it is essential that the temperature on the Intoxilyzer 5000-C be within a certain range in order to produce a reliable result. According to the expert, the technician should repeatedly check the temperature. The cell block video revealed that the technician never did. Based on that error and the accused's testimony about his drinking pattern, the court concluded that there was no reliable evidence regarding the accused's BAC. R. v. White, 2011 ONCJ 597