EVIDENCE TO THE CONTRARY - DOES "BURPING" AFFECT THE PROPER OPERATION AND FUNCTIONING OF THE INSTRUMENT?

The Alberta Court of Appeal has granted leave to appeal a case where Mr. So challenged the results of his breath samples (R. v. So, 2013 ABCA 433). The issue before the Court will be:

Is evidence of a failure by a qualified technician to comply with a direction contained in the Part A of the “Operation of the Intoxilyzer 5000C” (namely, to make sure that the subject’s breath is free of mouth alcohol, burping being a source of mouth alcohol identified by the Manual) evidence “tending to show” that the approved instrument was operated improperly?

That argument was not successful at his trial nor at his summary conviction appeal (the appeal decision can be found at R. v. So, 2013 ABQB 549).