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Is the the Intox EC/IR II the right breathalyzer for BC?

Is the the Intox EC/IR II the right breathalyzer for BC?

New Breathalyzer in British Columbia

If you’re unlucky enough to be arrested for driving over .08, and consequently you are taken back to a police station to blow, you will be asked to provide a sample into an approved instrument, i.e. the big breathalyzer. The approved instrument currently in use in most police departments and RCMP detachments in British Columbia is the BAC Datamaster C. However, this instrument is slowly being replaced by the Intox EC/IR II.

We first wrote about it here. If you are unlucky enough to be charged with blowing over 80 mg% in West Vancouver in the last few months, you have already seen this machine.

Other police departments and RCMP detachments will be acquiring them. We know this because the Justice Institute no longer offers training to police officers hoping to become qualified technicians on the Datamaster. The only training offered is for the Intox EC/IR II. This training is only offered to police officers. Independent forensic consultants, Crown counsel, and criminal defence lawyers like ourselves are not permitted to take the course. We think that’s unfair. But that’s another blog post.

The question is whether the Intox EC/IR II the right breathalyzer for BC. We we were able to obtain a copy of the manual long before any other law firms and long before it was even in the Court Library. We’ve read the manual and we’ve thought about potential problems with this machine and other breath-testing equipment. And we aren’t the first.

In Georgia, the government was concerned about the breath testing equipment that was being used to analyse samples from drivers suspected of being over the legal limit. The Georgia Bureau of Investigation Crime Laboratory conducted a thorough study in an effort to determine which instrument was best able to produce reliable and accurate alcohol readings. The GBI Crime Lab was looking for a replacement for the Intoxilyzer 5000 (which we also have in our office) which is currently in use in their state.

There are dozens of instruments on the market designed to detect blood alcohol level. Of these machines, the GBI Crime Lab narrowed it down to three possible models: The Intoxilyzer 9000, the Evidenzer 240 Mobile, and the Datamaster DMT-GF.

In Georgia they didn’t even consider the Intox EC/IR II. The report does not include the reasons why it wasn’t considered.  It seems that they ruled it out because it simply didn’t meet the basic criteria for selection. Although the Intox EC/IR II is new to Canada, it has been on the market for 8 years and only a handful of jurisdictions bought them.

Of the three instruments evaluated in the Georgia study, the Datamaster DMT-GF most closely resembles the Intox EC/IR II. It was the only two of the three that used a combination of fuel cell and infrared (IR) technology to detect and measure alcohol levels. One would think that with such sophisticated technology and two methods of measurement the Datamaster DMT-GF would be the instrument of choice. Surprisingly, it scored the lowest of all three by the criteria set for the study.

The study conducted by the GBI Crime Lab was released in September. We first learned about it in October at one of the impaired driving conference we attended in the U.S. We obtained a copy and have read it over to determine why the dual-analysis instrument scored so poorly. The reason? Fuel cell stability caused the instrument to lose points in many categories overall.

Don’t forget: the breath testing equipment used in IRP cases relies ONLY on fuel cell analysis. Still feel comfortable with that scheme? We don’t.

The Datamaster DMT-GF received a little more than half the score obtained by the Intoxilyzer 9000 and was 150 points behind the Evidenzer 240 Mobile. This was due to the fact that the machine did not have desired specifications to make breath testing optimal (for example, the Evidenzer 240 Mobile can heat up the mouthpiece, making the possibility of a temperature issue less likely). But the largest concern identified by the GBI Crime Lab study was the stability and performance of the fuel cell.

The breathalyzers were scored across seven categories, which included specification review, a literature review, customer evaluations, manufacturer evaluations, legal opinions, potential modifications, and a cost-benefit analysis.

In the specifications category, the following factors were assessed: detection system, diagnostic criteria, operating criteria, optional equipment, performance criteria, sampling criteria, and software capabilities. Out of a total 237 points, the Datamaster DMT-GF scored only 157. Some of the reasons the instrument lost points included the fact that it was not sensitive enough to exclude other compounds or mixtures that can cause a false reading. This is something that we remain concerned about with both the BAC Datamaster C and the Intox EC/IR II, never mind the Alco-Sensor IV DWF which is only designed to be a screening device. The instrument also had a poor data sampling rate, and its IR system used only reflected IR paths. This increased the likelihood of error in obtaining the readings.

The breathalyzer also suffered in the diagnostic criteria category due to the fact that it had difficulty purging the sample chamber and was unlikely to obtain a “true zero” reading when doing a blank check. This is very important to reliable testing because alcohol left in a sample chamber can cause falsely elevated readings in an otherwise innocent person. With respect to its operating criteria, the operating and storage temperature ranges were insufficient. Given that fuel cells in the Alco-Sensor IV DWF have only a 30 degree operating temperature range, we wonder if this isn’t a problem that is directly linked to the presence of the fuel cell itself.

The study indicated that when operating properly the Datamaster DMT-GF performed well. The problem was that there were numerous error messages obtained during laboratory testing. Not surprising to us is the fact that the errors were primarily caused by disagreements between the fuel cell and the IR system. We wonder how many innocent people will be charged with refusal when the Intox EC/IR II experiences similar errors for similar reasons? It is important to us that the Intox EC/IR II does not indicate what reading was obtained on the fuel cell, only the reading as detected by IR.

In particular, we noted in the appendix that during the calibration check the Datamaster DMT-GF could not complete the full calibration check due to a repetitive blank error. We have expressed before some concerns that we have about the potential of a fuel cell to retain alcohol after the subject test. We have demonstrated this in our office and have seen it on calibration check sheets we obtained for the Alco-Sensor IV DWF through Freedom of Information Requests. This is a serious concern that could result in otherwise innocent people facing criminal charges.

Ultimately, the Datamaster DMT-GF failed because of the dual-analysis. This makes us question whether the Intox EC/IR II is the right breathalyzer for BC. Or whether there is a right instrument at all.

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