At trial, evidence of the intoxilyer was excluded: A true photograph of the Intoxilyzer actually utilized in this case was entered as Exhibit 3. It reads “Intoxilyzer 400”. The letter “D” does not appear beside the number 400 on Exhibit 3. The letter “D” is located next to a serial number which is on a different place on the instrument. The Defence says that the instrument used by the arresting officer at roadside was not an Intoxilyzer 400D as required in the Criminal Code but rather an Intoxilyzer 400. Clearly an Intoxilyzer 400 is not the same as an Intoxilyzer 400D. It is only the latter which is an approved instrument under the Criminal Code.
The Alberta Court of Appeal ordered a new trial:
In our opinion, the trial judge erred in focusing only on the label of the instrument without considering the entire factual matrix on the issue of objective reasonableness. For that reason, we dismiss the appeal and we confirm the order of the summary conviction appeal judge directing there be a new trial. R. v. Nowakowski, 2013 ABCA 325