EVIDENCE TO THE CONTRARY - COURT ACCEPTS TESTIMONY FROM QUALIFIED TECHNICIAN REGARDING PROPER OPERATION AND FUNCTIONING OF INSTRUMENT

The accused was convicted at trial of driving while over .08. Defence counsel appealed and argued that there was evidence that the Intoxilyzer 5000C was malfunctioning because it did not print out a final test result. Crown counsel submitted that the trial judge accepted the evidence of the operator who was a qualified technician. The operator’s evidence was that the result of the breath test could be seen on the digital display of the Intoxilyzer even if the instrument did not provide a written printout to confirm the digital display. The Court referred to the qualified technician's testimony at trial and pointed out that the trial judge had accepted that evidence: "The officer testified that the machine was performing properly at 1:41 p.m. [sic] when a reading of 220 millilitres per cent was shown, and that the subsequent ‘invalid test’ printout, only had to do with the purging of the machine.... As a qualified technician, his testimony was uncontradicted by any other witness, and I find it to be acceptable and credible evidence as to the proper and accurate reading obtained on the machine." The Court dismissed the accused's appeal.  R. v. Shaw, 2011 SKQB 425

This case was decided prior to the Supreme Court of Canada's decision in R. v. St. Onge-Lamoureux,  however qualified technicians and counsel will find this case useful as it deals with the issues of proper operation and functioning of an approved instrument.