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Evidentiary IR Breath Testing1

Intoxilyzer@ 5000C*

James Wigmore, Jeff Patrick

and Rick Libmant

This paper was presented at a workshop presented at the Canadian Society of

Forensic Science. 42nd Annual Conference in Toronto. Ontario, 26-30 September 1995.

James Wigmore and Jeff Patrick have been responsible for implementing the use of the

Inroxilyzer 5000C approved instrument in Ontario. The ar~thors review the histov of

the development of the lntoxilyzer as well as the breath test sequence and operation of

the Intoxilyzer 5000C. Numerous charts and diagrams are included.

Cet article a i t i soumis a un atelier lors de la 42e Confirence annuelle du

Canadian Society of Forensic Science renrte 2 Toronto (Ontario) dii 26 au 30 septembre

1995. James Wigmore et Jefi Patrick ont ere' responsables de l'introduction de

l'urilisarion de l'appareil de dktection approuve' Intoxilyzer 5000C en Ontario. Les

altreurs re'visent l'historique du de'veloppement dri Into-~ilyzera insi qlie la succession

des e'tapes dri test d'e'chantillon d'haleine et le fonctionnement du lntoxilyzer 5000C.

Pllisieurs r a b l e a ~et~ g raphiqries y sont inclris.

"The introduction of microprocessor-controlled infrared based instruments

during the last decade has at last persuaded the authorities in many countries to

put aside the chromic acid ampoules, cover up the knurled knob and pointer, and

set the null galvanometer on the Breathalyzer 900 to zero for the last time ..."

Smith, D., 1993

* This paper was prepared for the Canadian Society of Forensic Science, "The

Forensic Menage: Changing Realities," 42nd Annual Conferznce, September 27,

1995, Toronto, Ontario. The moderator of this workshop was Joel Mayer, Head of

Toxicology. Centre of Forensic Sciences. Toronto. Ontario.

7 James Wigmore, Forensic Toxicologist/lntoxilyzer Training Coordinator, Centre of

Forensic Sciences, Toronto, Ontario; Jeff Patrick, Breath Testing Coordinator.

bletropolitan Toronto Police, Toronto, Ontario; and Rick Libman, Crown Counsel,

Crown Law Office -Criminal, Ministry of the Attorney General, Toronto, Ontario.



, f



1971 - "Omicron" Intoxilyzer

- "CMI" (Colorado Mountain Industries)

Intoxilyzer 401 1

Intoxilyzer 401 1 A

Intoxilyzer 401 1 ASA

1984 - Intoxilyzer 5000 first used in Minnesota

1992 - Intoxilyzer 5000C gazetted in Canada

1994 - Intoxilyzer 5000C first used in Canada

CMI Inc. was purchased by MPD Inc. which also owns MPH.


Intoxilyzer 401 1 3.39 microns

Intoxilyzer 401 lA 3.42 microns

Intoxilyzer 401 1 A-27 3.42 microns

Intoxilyzer 401 1 AS-A 3.39 3.48 microns

(Texas) (Interferant detection)

All these models were manual, not totally automatic.

' All had mirrors in the sample chamber to reflect the IR light back and

forth to increase the pathlength (2.7 m).

No keyboard to enter data.

Intoxilyzer 401 IAS-A

The Electromagnetic Spectrum

Transmlnance In Percent i "\,/"


rx /O 5 ; ;;Y






Breath Pressures Obtained in Male and Female Subjects

Subject Brcath Prcssu~.e in cm of 13'0

~ h n ~ e Mean

Male 36- 127 59

Female 20-64 43

Dubowski, 1974

Breath Test Sequence of Intoxilyzer 5000C in Ontario


>>>>>>>>>>>>> I0 System Checks

3 Internal Standards



>>>>>>>>>>>>> I0 System Checks

3 Internal Standards



The time course of the breath-alcohol concentration of single

uninterrupted breath samples monitored by infrared spectrometry:

Breath Test Sequence of Intoxilyzer 5000C

A = Expired alveolar breath without "mouth alcohol"

B = Breath containing "mouth alcohol" The breath test sequence is conducted twice for each subject.

Tllcrcfore for each subject lherc will be conducted:

6 Blilnk Tests

40 System Checks

I2 Internal Standards

2 Calibration Chccks (Alcohol Standard)

2 Subject Tests


Accuracy and Precision of Represenlalive Breath-Alcohol Analyzers:

In Vilro (Sirnulalor) Tcsls*

Valwr-Alcohol Conccnlralion (gl210 1,)

No. of

Replicate Target Result

Device Tests Value Mcan S.D. C.V. Span

Breathalyzer@, 20 0.100 0.099 i0.0015 1.590 0.098-0.103

Model 900A

I GC-Intoximeter, 36 0.100 0.099 ~0.00131 .3% 0.097-0.102

Mark IV

lntoxilyzcr 45 0.100 0.100 M.0012 1.2% 0.098-0.102


*Author's experimental data 1

Dubowski. 1991

Technology of ~r e a t h -~l c o h oAln' alysis

Harding et al., 1990 Wisconsin Study

395 paired breath-blood samples obtained from arrested drivers in

which the samples were collected within I hour of each other.

Breath was usually collected before the blood.

67% Intoxilyzer 5000 rcsulls were no re t11an 10 1ing/100ml I~clow

the BAC.

31% both results were within 10 mg/IOOml of each other.

Only 2% of results was Intoxilyzer 5000 more than 10 mg/100ml


Table I -Instances in which the Intoxilyzer 5000 breath-alcohol

result exceeded the blood-alcohol result by more than

0.0 1 .


Intoxilyzer 5000, Blood-Alcohol, Time,*

g/210 L g/dL Difference rnin

0.28 0.262 0.018 58

0.15 0.129 0.02 1 5 3

0.3 1 0.298 0.012 3 1

0.2 1 0.198 0.0 12 4 1

0.19 0.1 69 0.02 1 50

0.16 0.149 0.01 1 58

0.15 0.133 0.0 17 48

0.10 0.082 0.01 8 34

*Elapsed time between breath and blood sampling.

"No evidence was found of falsely elevated BrAC results that

could be nttributctl to unusually low individual blootl- to hrcath-nlcol~ol

ratios, erldogenous or exogenous interfering compounds in the breath.

residual mouth alcohol, or electromagnetic interference. Overestimation

of BAC by the Intoxilyzer 5000 was infrequent and of small magnitude.

Indeed. most of the dirferenccs shown in Table 1 coultl be climinatcd if

the amount of :~lcol~ot1l1 ccx.ctically clin~inatcdI n the timc elapsed

between the breath and blood specimen collection were atldcd to thc


Occupational Exposure to Solvents

Two subjects worked in an auto bodyshop.

Tested on four occasions while painting cars.

Worked in a 30 x 25 foot room that was ventilated by two fans.

Sprayed about five gallons of solvent based paint.

Solvents were acetate, xylene, toluene, propylene glycol, n butyl

alcohol, ethyl alcohol, isobutyl alcohol, and diacetone.

Withill 10 minutes arter the end of exposure, a11 subjects tested

0.00 on an Intoxilyzer 5000.

"When one considers the quick dissipation of solvcnts from the



lungs coupled with the 15 minute observation requirement for a valid

breath test, paint solvent's effect on the Intoxilyzer 5000 seems remote

at best. . . ."

(ImObersteg el r r l . , 1993)

Inhalation of Gasoline Fumes (Cooper, 1981)

Subject breathing six inches away from the surface of a gallon can

filled with Texaco gasoline.

Inhaled gasoline fumes for 5 to 15 minutes.

After 10 minutes of exposure to fresh air, the Intoxilyzer 401 1

result was 0.00.

At the end of second period of inhalation of gasoline the subject

had "light headedness, difficulty in breathing, GI upset, decreased

concentration and comprehension of activities around him and said a

few random incoherent remarks . . ."

"Extreme care should be exercised in performing any such similar

tests . . ."

Table I . Activity and Associated Intoxilyzer Breath Test Results


Time Taken Reading

Activity (minutes) (5% Blood Alcohol)

I . Initial breath test 0.00

2. Intermittent inhalation of gas fumes 5

3. Single inhalation of fresh air 1 0.19

4. Inhalation of fresh air 2 0.00

5. Inhalation of fresh air 7

6. Inhalation of gas furnes 15

7. Inhalation of fresh air 4 0.0 1

8. Inhalation of fresh air 6 0.00

Gasoline in the Mouth (Dalley, 1985)

Subject rinsed mouth with 8 ml of Esso gasoline.

One minute laterth'e result of the Intoximeter 3000 was 5

mg/ 100ml.

After 15 minutes the result was 0.00.

No gasoline was swallowed but the taste of gasoli~ier emained in

the mouth for 6 to 8 hours.

Breath Test Sequence and Operation of the Intoxilyzer 5000C

Breath Test Sequence

The breath t ~ s st e quence can differ for each state or country and

can be adjusted by the Mode Selection Switches. The sequence of

testing in Ontario is summarized as:

Blank Test

10 System Checks and 3 Internal

Standards (>>>>>>>>>>)

Calibration Check

Blank Test

I0 System Checks and 3 Internal

S tandards (>>>>>>>>>>)

Subject Test

Blank Test

This sequence is repeated for the subject, at least 15 minutes later.

Therefore for each subject there will be conducted 6 Blank tests, 40

System checks, 12 Internal Standards, 2 Alcohol Standards, and 2

subject tests. The duplication for the breath tests is the satne as for the

Breathalyzer in that the two truncated results ~ r i i ~bset within 20

mg/100ml of each other. If the duplication of the breath test exceeds 20

mg/100ml then a third breath test must be conducted and the sequence

repeated. The results of the Blank tests and the Alcohol Standard tests

also must conform to the same criteria as for the Breathalyzer tests. The

blank test result must be less than IOmg/IOOml and the Calibration

check must be within IOmg/IOOml of the target value. The

concentration of the Alcohol Standard in the simulator will result in a

target value of 1001ng/100ml. This target value will always be the same

since the simulator is kept at a constant temperature. The allowable

variatio~i for a Calibration check will therefore be from 90 to 110

mg/ l00ml.


Operation of the Intoxilyzer 5000C

When the instrument is first activated by the power (onloff)

switch, it emits an audible tone, the pump is activated to fill the tubing

and sample chamber with room air, the start test switch is deactivated

and the screen message "NOT READY" appears.

The Intoxilyzer 5000C requires 10-15 minutes to heat the

instrument to operating temperature of 45°C and to stabilize the

electronics. The instrument then conducts a series of intcrrial or

diagnostic checks, and the instrument displays the following messages







After each check the instrument emits a tone indicating that check

has been successfully conducted. At the end of the checks the

Intoxilyzer 5000C displays "DIAGNOSTIC OK". If there is a problem

the instrument will emit a high-low tone for 5 seconds and display an

ERROR message.

After the diagnostic checks are successfully completed the



across the screen. The flashing message "PUSH BU'ITON" is repeated;

the flashing indicates that the instrument is waiting for the technician to

push the button. The date and time are displayed and should be checked

for accuracy by the technician. If the date or the time requires to be

changed, then the technician can enter the new date and time by the

key board.

The entire message is repeated until the technician initiates the tcst

sequence by pushing the START switch. The instrument then displays

the flashing signal "INSERT CARD". The technician is required to

insert the test record card properly. The card should be centered in the

printer and the flat surface of the card should be inserted at a 90" angle

to the printer arid not the front panel of the instrument.

After the test record card is properly inserted into thc instru~nent,

in the Intoxilyzer 5000C with a keyboard, a series of questions will

appear on the screen regarding the subject's name, driver's license

number, date of birth and the technician's name, etc. This information is

entered usi~ig the keyboard; the instrurne~lt the11 asks if the tcchilician

wants to review the data entered. The message "REVIEW DATA? Y/N"

appears. The technician should always respond the first time by typing

Y (yes). The data that was entered is then displayed on the screen,

allowing the technician to oorrcct any entry errors. Thc i~istru~ncnt

again asks if the technician wants to review the data. If the technician is

satisfied that the infornlation entered is correct, then "N" should be

typed in response.

The Intoxilyzer 5000C then conducts an air blank, by activating

the pump and the three way valves. The pump creates a vacuum which

draws in room air through the heated external breath tube, through the

internal breath tube and sample chamber and out the exhaust port.

While the blank is being conducted, the instrument is constantly

analysing the room air and showing the results on the screen. If a

variable concentration of potential interfering compound is detected

then the high-low tone sounds and the message "AMBIENT FAILED"


After the air blank is conducted, the message >>>>>>>>>>

appears as the ins tn~~nencot ntlucts 10 system chccks and 3 interiial

standards. If any probleln is detected by the instrument the11 a high-low

tone sounds and an ERROR message will appear on the screen.

Next the instn~ment conducts an Alcohol Standard test. The pump

and the three way valves are activated and air is drawn through the

alcohol simulator illto the sample charriber and recycletl back into the

simulator. The message "CAL CHECK .000" is displayetl, which means

"Calibration Check". The 3 tligits that appear after the CAL CHECK

are the result of the standard test. This result increases as the s:~niple

chamber becomes filled with the alcohol vapor and an equilibrium is


The instrument then conducts another BLANK TEST to clear the

sample chamber and tubing of alcohol containi~iga ir. As the blank is

being conducted, the rcsult of the Alcohol Staritlard tcst will dccrc;~se

from approxirnatcly .I00 to .080 to .040 etc. until a .000 appears. This

indicates that the sample chamber and the tubing is being cleared of

vapour from the standard tcst. The instrument again conducts the

system checks and establishes a zero reference point, and the message

>>>>>>>>>> appears. If all systctn chccks and inrcrrial stantlartls are


satisfactory the message "PLEASE BLOWIR INTO MOUTHPIECE

UNTIL TONE STOPS" is displayed. The message "PLEASE

BLOWIR" is repeated until the subject starts to provide a sample. If the

subject blows into the instrument with enough force a tone is activated,

which continues as long as the subject continues to blow with sufficient

pressure. If the subject stops blowing before the minimally accepted

sample is collected, the tone will stop and the message "PLEASE

BLOW" is displayed on the screen. The instrument emits an intermittent

tone. If the subject fails to provide the sample after 2-3 minutes.

a high-low tone sounds and the message "DEFICIENT SAMPLE"

appears on the screen. If the subject refuses to provide a sample the

operator types "R" on the keyboard (R means "Refused") and tlie

message "REFUSED" is displayed on the screen and a high-low tone is


After the subject provides an acceptable breath sample, the screen

goes blank for about a second and the message "SUBJECT TEST .###"

appears. This is the test result of tlie analysis of the sample that is

present in the chamber, which is the last phrt of a forced exhalation

(alveolar air). Next an air blank is conducted, and tlie result of the

subject test will decrease lower and lower as tlie subject's breath is

vented out the instrument and replaced with room air. The instrument

then prints the results of the subject test, the blank tests and the ~lcohol

standard test, the location and serial number of the instn~ment,t he date

and time, the subject's name and other information that was entered by

the technician. The instrument then displays "TEST COMPLETED".

The entire sequence can be completed in approximately 3 ~ni~iutes.

After at least 15 minutes, the entire sequence is repeated.

Breath Sampling System

The total volume of breath a subject can exhale after a maximum

inhalation is known as Forced Vital Capacity (FVC). The FVC varies

according to the subject's age, height and sex. In general males have a

greater FVC than females. The FVC also increases with height and is

related to age. The greatest FVC occurs in subjects 20-40 years of age,

which decreases in subjects 65 years of age and older.

The extremes of FVC vary from 1.68 L for a 65-year-old female,

132 cm in height, to 7.g5 L for a 25-year-old male of 216 cm in height.

The breath sampling system of the Intoxilyzer 5000C has a unique

system that allows for this biological variability, such that depending on

the FVC of the subject, the amount of time required for a minimally

acceptable sample can vary from 5 to 15 seconds.

The breath sampling system takes into a c c o u ~ t~hti s biological

variability and adjusts the time required to blow illto tlie instrument

depending on the capacity of the individual's lungs. For a subject with a

small lung capacity, only 5 seconds may be required to obtain a sample

that is acceptable by the instrument. For someone with a large lung

capacity, it may require 15 seconds to obtain a sample acceptable to the


If alcohol is present i l l tlie subject, the BrAC will begin to rise

rapidly as the breath exhaled approaclles the alveolar region, the BrAC

as it is exhaled reaches a plateau. Once the BrAC plateau is reached,

then the alveolar or deep lung air is obtained. The arnount of breath that

must be exhaled to reach this pleateau depends or1 the FVC of the

subject. The greater the FVC, tlie greater volume of breath will Ilave to

be exhaled. The Intoxilyzer 5000C autoniatically evaluates three

separate but i~iterrelatedc riteria before accepting a breath sao~pleT. he

three criteria are:

I. PI1ESSUI1E Tlie subject nlnst blow with approximately 15 c111 of

water pressure to activate the tone.

2. TIME The subject must blow for approximately 5 seconds.

3. SLOPE Tlie subject's BrAC must level off or plateau.

Initially, the sut~jcctm ust first provide cnougl~p ressure to activate

the 15 cln pressure switch, the timer is then activated for approximately

5 seconds, and after that the slope of the expired BrAC curve is

determined. As soon as the slope criteria are reached, the instnr~lle~lt

determines that the sample is adequate. A "0" will appear in front of the

subject's result to indicate to tlie technician that the minir~lally adequate

sample is obtained. The technician should allow the subject to blow at

least an additional 2 seconds to ensure a more tha~lr ni~~imalalyd equate

sample. The technician should not tell the subject to stop blowing, but

should allow the subject to blow as long as possible. The lo~igert he

subject blows, the more accurate the result.

During the sample delivery, tlie instrument is coriducting a series

of I11 analyses on the inco~iiing breath sample. The il~strunient

determines the alcohol concentration of the sample every 0.6 seco~lds

and compares it with tlie concentration 0.6 seconds c;lrlicr; tliis



The Intoxilyzer automatically evaluates three separate but

interrelated criteria before accepting a breath sample.

I . PRESSURE: The subject must blow hard enough to get a steady


2. TIME: Thk subject must blow for at least 5 seconds.

3. SLOPE: The subject's alcohol concentration must level off.



4 w


Mlnlmum volume

Alvelor Slope


W l l l prlnt only after I n s t r u m e n t

condltlons are met and subject

quits blowlng.

If the instrument criteria of pressure, time, and slope have been

met, and the subject stops blowing; the Intoxilyzer will accept the

sample, display the alcohol concentration and then print out the

entire test sequence with alcohol concentration results.

This unique combination of sample validation and operational

flexibility assures optimum field accuracy.

For example, if a subject, after providing 15 cm of water pressure

for 5 seconds, has a result shown every 0.6 seconds of .I02 .I06 . I 1 0

. I 14, the instrument will not accept the sample as the incrcase in BrAC

is greater than .002.

If, however, the subject, after meeting the pressurc and time

requirements, shows a result every 0.6 seconds of .I40 .I44 .I45 .146,

this sample will be accepted as tlie slope or the increase in BrAC is less

tlla~l, 002.

Mouth Alcohol Deterniination by Slope Detection

The slope detector is also used as a mouth alcohol detector. This is

especially important in those jurisdictions in whicll only onc breath test

is provided. In Ontario, tlie mouth alcohol detector is just anotller

safeguard to add to the 15-minute waiting period and tlic duplicate of

two breath samples at least 15 rninutcs apart.

In contrast to the nor~nnlB rAC exhalation, tlle illcrease in BrAC in

someone who has recently consumed alcohol will rise at a much steeper

slope, and then drop quickly as the residual mouth alcohol is removed

from the sample. In this case, there would be a drop of greater than .001

and the mouth alcohol cletcctor would be activatcd (as below).

For example, if sonicone consumes ~ilcollojlu st prior to providing

a breath sample, the slope of the alcohol concentrations every 0.6

seconds may be: . l I0 .I30 .I50 .I65 .I70 .I65 .160. The decrease of

BrAC of ,005 would activate the mouth alcohol detector and thc sample

would be recorded as "INVALID SAMPLE". This message would flash

across tlie display and a Iligll-low tonc would so~~tiWtl.l lcrl this occurs.

test the subject again after at lcast 15 minutes. The residual mouth

alcohol should be removed during this period and a propcr sample

would be collected. A third test, at least 15 minutes later. niust be


Interferant Detector

The Intoxilyzer 5000C compares the electrical signals generated

by the IR detector at tlie 3.39 microns and 3.48 microns to detect and

adjllst for possible interfering compounds. It is based on tlie principle

that interfering compounds will not absorb IR to thc same extent as

determines the slope. common type of slope detector criteria is a +2, ethyl alcohol at both wavelengths. For example, the most common

- I . This means that as soon as the increase in BrAC every 0.6 seconds potential interfering compound in tlie breath is acetone. Elevated

is less than a +2 increase or -I decrease, a minimally adequate sample acetone concentrations are prcsent in the breath of diabetics who are not

is accepted. u~iderp roper medicatioo. s~~t),jccwtsll o arc fasting, ant1 sul7jccts who arc

on a high protcin, low carbohydrate dict. Interestingly, the acetone


(7 J.M.V.L.1

concentration drops dramatically after the consumption of alcohol,

making the incidence of high acetone concentrations in the breath of

drinking drivers very remote.

IR at 3.39 microns is substantially absorbed by acetone, but not IR

at 3.48 microns. The instrument determines a constant difference

between the electrical signal generated by the detector at these two

wavelengths; this difference is maintained only if ethyl alcohol is


Table I illustrates how this is accomplished. For a sample of room

air the electrical signal generated at 3.48 microns can be described as 6

units and for 3.39 microns as 4 units. The difference is 2 units. This

difference will be maintained if only ethyl alcohol is present. If ethyl

alcohol is introduced into the sample chamber, the IR energy will be

absorbed by the ethyl alcohol molecules and there will be a decrease in

the electrical signal generated by the IR detector. If the 3.48 microns

signal decreases to 5 units, then the 3.39 microns siglial must decrciise

to 3 units, maintaining the 2 unit difference. If ethyl alcohol and

acetone are present, the 3.48 microns signal may decrease to 4.5 units.

The electrical signal at 3.39 microns will decrease even more, as this

wavelength is strongly absorbed by acetone. The difference is now 3.5

units, not 2 units. The instrument adjusts the result to account for the

: difference in signal and if the concentration of tlie interfering

compound is high, the instrument will display the error message

"INTERFERANT". The Intoxilyzer 5000C not only detects acetone but

also automatically adjusts for its effect so that the alcohol results are

accurate. Although other potentially interfering compounds, e.g.,

toluene, can be detected, the instrument cannot adjust the result


Detection of possible interfering compounds by the comparison of

electrical energy generated by the 2 IR wavelengths.

3.48 microns 3.39 microns difference

Initial (room air) 6 4 2

Ethyl alcohol only , , 5 3 2

Ethyl alcohol and acetone 4.5 I 3.5*

Differential Voltage Monitoring (DVM)

The DVM is the combined output of the signals generated by all

three wavelengths of IR energy. The DVM determines the stability of

all three signals. During the >>>>>>>>>> part of the breath test

procedure, the DVM is checked to see that it is within the parameters of

.000 to .600 and if there is any positive or negative drift. If the DVM is

not within these parameters, then the instrument will sound a high-low

tone indicating the error, and an ERROR tilessage will appear, either

PROCESSOR ERROR 3, 4, or 5. The instnimcnt will then display tlic

DVM value. By monitoring the displayed DVM value, the tccliniciei

can determine what is wrong and how to correct the ERROR.

Tlie DVM can be thought of as tlie scale of the instrument. Katl~er

thali a visual scalc graduated from 0.0 to 0.40 as is for the Brcathalyzcr.

tlie DVM scale is electronic, each 0.001 unit 011 thc DVM sci~lcb eing

eqiiiv;~lent to approximately 0.001g/1001iil of iilcoliol. For sitiildicity

the IIVM sciilc will bc rcfcrrctl to as n whole numhcr. 'l'lic scalc of thc

DVM is between 0 and 1023, which i s 2"', the binary equivalent of this

number. The DVM is normally set at 350. If this was the DVM at the

start of the breath test, and the BAC was 200 mg/IOOmI, the DVM

would increase to 550. as each unit of DVM is equivnlcnt lo 1

rng/I 001nl BAC.

If the DVM was at 400 at tlic start of the breath tcst alitl tlic BAC

was 250, the DVM would be 650; again BAC is added to the DVM to

result in the final DVM. Tlie actual number of the DVM is not

important os long as tlie DVM is constant before ci~cli test. The

instru~nent is looking at the chiinge in DVM for a t~rciitti tcst, [lot tlie

actiial ~lut~ibcr.

As dust and dirt enter the saniple chamber, the DVM increases,

since sonie of tlic IR liglit is absorbed by the dust. Agaiti tlic actital

200 BAC

250 BAC




DVM value is not important; it is the change in DVM after the breath

test. Therefore dust and dirt in the sample chamber will not affect the

accuracy of the analysis but will affect the workload of the instrument.

he highest value the DVM can be is 1023. Therefore, if the DVM

started at 900, any BAC greater than 123mg/100ml would exceed the

limit. To ensure that there is adequate workload, an ERROR message

(PROCESSOR ERROR 5) occurs if the DVM exceeds 600. This allows

a workload of at least 423mg/100mI. New instruments and instrurnents

that have been recently maintained or repaired should have a DVM of

about 350; this allows a workload of 673mg/I 00ml.

If a PROCESSOR ERROR 5 occurs and the displayed DVM result

is *23, this means the IR source is burned out. The instrument uses the

symbol * for the .unit 10.

Obtaining Acceptable Breath Samples

Due to the pressure, time and slope requirements, more coaching

of the subject is required to obtain an acceptable breath sample for the

Intoxilyzer than for the Breathalyzer. If the subject has a high BAC,

more time may be required to obtain the BrAC plateau as indicated by

the Slope Detector. If the subject blows too hard, he or she may have

difficulty reaching the BrAC plateau. A moderate pressure is all that is


Remember, the Intoxilyzer cannot be conned or fooled into

accepting a poor sample. If the subject starts blowing out the side of the

mouth, or places the tongue over the mouthpiece or tries to suck back,

the Intoxilyzer will not accept the sample.


Intoxilyzer 5000C and Other IR Instruments

1. Fukui, Y., and Yamamoto, Y., "Determination of Breath Alcohol by

Infrared Gas Analyzer," Med. Sci. Law, l I: 182- 186, 197 1

2. Harte, R.A., "An Instrument for the Determination of Ethanol in

Breath for Law Enforcement Practice," J. Forens. Sci., 16(4): 493-

510, 1971

3. Goldberger, B.A., and Caplan, Y.H., "Infrared Quantitative

Evidential Breath Alcohol Analyzers: In Vitro Accuracy and Precision

Studies," J. Forens. Sci., 31(1): 16-19, 1986

4. Stem, E.L., Mooney, R., Ukestad, E., and Jejurikar, S.. "Field Study

Comparison of Intoxilyzer 5000 Breath Alcohol Tests With GLC

Blood and Urine Alcohol Tests," Alcol~ol Drugs arid TruSJrc Srrfefy,

M.W. Perrine (ed.), National Safety Council, Chicago, 250-259,


5. Harding, P.M., Laessig, R.H., and Field, P.H., "Field Performance of

the Intoxilyzer 5000: A Comparison of Blood- and Breath-Alcohol

Results in Wisconsin Drivers," J. Forens. Sci., 35(5): 1022-1028,


6. Smith, D.J., and Laslett, K., "Evaluation of the Draeger Alcotest

Model 71 10 Infrared Breath Alcohol Analyzing Instrument,"

J. Forens. Sci. Soc., 30(6): 349-355, 1990

7. 1)uhowski. K.M., "The Tecllllology of Breath-Alcohol Anillysis,"

U.S. Dept Health Human Services, 1991

Breath Alcohol Simulators

1. Dubowski, K.M., "Breath Alcohol Simulators: Scientific Basis and

Actual Performance," J. Analytical Toxicol., 3: 177-1 82, 1979

2. Dubowski, K.M., and Essary, N.A., "Evaluation of Commerciill

Breath-Alcohol Simulators: Further Studies," J. A~~alyticTalo xicol.,

15: 272-275. 199 1

3. Speck, P.R., McElroy, A.J., and Gullberg, R.G., "The Effect of

Breath Alcohol Simulator Solution Volunle on Measurement

Results," J. Analytical Toxicol., 15: 332-335, 199 1

4. Wigmore, J.G., "The Stability of Aqueous Ethanol Solutions After

13 Years Storage" [Letter], J. Forens. Sci., 37(3): 685. 1992


1. Cooper, S., "Infrared Breath Alcohol Analysis Following Inhalation

of Gasoline Fu~nes,"J . Analytical Toxicol., 5: 198- 199, 198 1

2. Papple, W.R., "The Effecl of Non Ethanolic Volatiles on the

Measurement of Blood Ethanol Concentrations With an ALERT

Screening Device," Can. Soc. Forens. Sci. J., 15(3/4): 133- 145, 1982

3. Dubowski, K.M., and Essary, N., "Response of Breath Alcohol

Analyzers to Acctonc." .I. Analytic;ll Toxicol., 7: 231-234, 1983

4. Jones, A.W., "Drug I;lusll Kcnction With Brcath Accti~ldchydc

Concentration: No Interference With an Infrared Breath Alcol\ol

Analyzer," J. Allalytical Toxicol., 10: 98-101, 1986

5. Jones, A.W., "Breath Acetone Concentrations in Fasting Healthy

Men: Kesponsc of Infrared Breath Alcohol Analyzers," J. Analytical

Toxicol., 1 1 : 67-69, 1987


6. Gornm, P.J., Weston, S.I., and Osselton, M.D., "The Effect of

Respiratory Aerosol Inhalers and Nasal Sprays on Breath Alcohol

Testing Devices Used in Great Britain," Med. Sci. Law, 30(3): 203-

206, 1990

7. Gill, R., Osselton, M.D., Broad, J.E., and Ramsey, J.D., "The

Response of Evidential Breath Alcohol Testing Instruments With

Subjects Exposed to Organic Solvents and Gases 111. White Spirit

Exposure During Domestic Painting," Med. Sci. Law, 31(3): 214-

220, 1991

8. ImObersteg, A.D., King, A., Cardena, M., and Mulrine, E., "The

Effects of Occupational Exposure to Paint Solvents on the

Intoxilyzer 5000: A Field Study," J. Analytical Toxicol., 17: 254-

255, 1993

9. Dalley, R., "DUI and Petrol Consumption," J. Forens. Sci. Soc., 25:

53-54, 1985

nilouth Alcohol Effect

1. Kempe, C.R., "Study of the Dissipation Rate of Ethanol from the

Oral Cavity," Law and Order, 20(9): 94, 1972

2. Feeney, M.T., Home, J.M., and Williamson, A.D., "Sobriety Testing:

Intoxilyzers and Listerine Antiseptic," Police Chief, 70, July 1985

3. Harding, P.M., McMurray, M.C., Laessig, R.H., et al., "The Effect of

Dentures and Denture Adhesives on Mouth Alcohol Retention," J.

Forens. Sci., 37(4): 99-1007, 1992

4. Gullberg, R.G., "The Elimination Rate of Mouth Alcohol:

Mathematical Modelling and Implications in Breath Alcohol

Analysis," J. Forens. Sci., 37(5): 1363- 1372, 1992 (*)


In the Court of Appeal of Alberta


Citation: R. v. Bennett, 2004 ABCA 116


                                                                                                                              Date: 20040329

                                                                                                                        Docket: 0301-0312

                                                                                                                           Registry: Calgary





Her Majesty the Queen




                                                                        - and -



Bradley Thomas Bennett








Memorandum of Decision of

The Honourable Mr. Justice OLeary (in Chambers)




Application for Leave to Appeal from the

Summary Conviction Appeal from the Decision of

The Honourable Madam Justice E.A. Hughes

dated the 3rd day of October, 2003




Memorandum of Decision of

The Honourable Mr. Justice OLeary




[1]        This is an application for leave to appeal the decision of a summary conviction appeal court affirming a conviction under s. 253(b) of the Criminal Code. The applicant contends the conviction should be ser aside as it is inconsistent with his acquittal on a related charge.   




[2]        The applicant was charged in the same information with two driving offences under the Criminal Code arising from the same events: (i) operating a motor vehicle while having a blood/alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood in violation of s. 253(b) (over .08"), and (ii) operating a motor vehicle  while his ability to do so was impaired by alcohol contrary to s. 253(a) ("impaired driving"). The applicant pleaded not guilty to both counts. The trial judge excluded the Certificate of Analysis with readings of .260 and .270, and the applicant was acquitted on the over .08 charge. The Crown called no other evidence with respect to the impaired driving count and an acquittal was also entered on that charge.



[3]        The Crown appealed both acquittals but later abandoned its appeal of the impaired driving acquittal. The summary conviction appeal court allowed the appeal and ordered a new trial on the over .08 charge. R. v. Bennett 2002 ABQB 625 (CanLII), (2002), 321 A.R. 129, 2002 ABQB 625.



[4]        The Certificate of Analysis was admitted in evidence at the second trial. The applicant did not testify but called expert opinion evidence on the effect of various blood/alcohol levels on ability to operate a motor vehicle:



Q: ... at what – at what level does – do people’s ability to operate a motor vehicle become impaired by alcohol?


A: It depends upon his tolerance to the effects of alcohol. Generally below .05 one is not impaired. When I say 05 I’m talking about 50 milligrams of alcohol per 100 millilitres of blood one is not impaired. However, a small segment of the population would probably be impaired even below .05. Between 50 and 100 milligram per cent one may be impaired by alcohol and at levels in excess of 100 milligrams per cent everybody’s ability to drive an automobile would be impaired by alcohol.


With respect to the applicant's blood/alcohol level, the witness testified:


Q: So, in this particular case if the – the breathalyzer certificate is correct and Mr. Bennett’s readings are 260 and 270, is there any doubt that his ability to operate a motor vehicle would be impaired by alcohol?

A: If that was his blood alcohol concentration at the time of driving, then his ability to drive an automobile would no doubt have been impaired by alcohol. [pp. 66/20 - 77/5]


[5]        The Crown did not challenge the admission or substance of the expert  evidence.



[6]        The applicant's argument that conviction on the .08 charge would be inconsistent with his acquittal of impaired driving was rejected by the trial judge. The summary conviction appeal court also declined to accept the argument: R. v. Bennett, 2003 ABQB 825 (CanLII), [2003] A.J. No. 1237 (QL), 2003 ABQB 825.



[7]        The applicant maintains: (i) the acquittal of impaired driving amounted to a finding of fact that his ability to operate a motor vehicle was not impaired at the relevant time:R. v. Grant 1991 CanLII 38 (S.C.C.), (1991), 67 C.C.C. (3d) 268 at 279 (S.C.C.); (ii) his certified blood/alcohol levels and the expert evidence leave no doubt his ability was impaired at that time; and therefore (iii) his conviction of over .08 was inconsistent with his acquittal of impaired  driving and offended the rule against inconsistent verdicts. 



[8]        The applicant submits the failure of the summary conviction appeal court judge to find the conviction of over .08 was a verdict inconsistent with his acquittal of impaired driving was an error of law justifying an order granting leave to appeal.



Test for Leave

[9]        The test for leave to appeal a summary conviction is two-fold. First, the appeal must raise an issue of law alone: Criminal Code, R.S.C. 1985, c. C-46, s. 839; R. v. Cyr [1996], A.J. No. 1101 (C.A.) (QL). Second, the issue must be of public importance; a mere error of law is not, by itself, sufficient: R. v. Chaluk (K.W.) (1998), 237 A.R. 366 (C.A.). The question of law must be of sufficient public importance to merit an appeal. As stated by Russell J.A. in Chaluk, supra, at para. 7:  



[t]his public aspect underscores both the insufficiency of mere error, as well as the need to demonstrate the potential for significant impact on the administration of justice. Well settled principles of law do not present that sort of further potential. But it is also of public importance that injustices flowing from clear errors of law not be condoned.


[10]      Among the factors relevant to the determination of whether a proposed  appeal raises an issue of law of public importance is whether it has arguable merit: R. v. Ehli reflex, (2000), 277 A.R. 170 at para. 9 (C.A.). Other courts have considered, in this context,  whether, if leave were granted, the appeal would have a viable chance of success: R. v. Zamfirov 1996 CanLII 683 (ON C.A.), (1996), 92 O.A.C. 317, 1996 CarswellOnt 3039 at para. 6; R. v. Brunner, [1996] B.C.W.L.D. 1075, 1996 CarswellBC 629 at para. 3 (C.A.).



 In my view, the issue raised here is one of law alone. The applicant has satisfied the first branch of the test. Consideration of the issue would not require an examination and evaluation of the underlying facts. Rather, it would involve the application of the established principle of inconsistent verdicts to the undisputed circumstances of this case.



[11]         I have concluded that the application for leave must fail on the question of arguable merit.



[12]      The test for determining whether verdicts are inconsistent is stated in R. v. McShannock reflex, (1980), 55 C.C.C. (2d) 53 (Ont. C.A.) at 56:



[t]he onus is on the appellant to show that the verdicts are so at odds that no reasonable jury who understood the evidence could have properly arrived at that verdict.... Where on any realistic view of the evidence, the verdicts cannot be reconciled on any rational or logical basis the illogicality of the verdict tends to indicate that the jury must have been confused as to the evidence or must have reached some sort of unjustifiable compromise.


[13]      Impairment is not an essential element of an offence under s. 253(b): R. v. Pilling, 1972 CanLII 218 (AB Q.B.), [1972] 4 W.W.R. 334 (Alta. Dist. Ct), R. v. Casson, reflex, [1976] 4 W.W.R. 561 (Alta. C.A.). In Pilling the Court held there was no inconsistency in an acquittal of impaired driving and a conviction of over .08 where the charges stemmed from the same transaction. The Court held that impairment is not an essential element of an over .08 offence. A conviction for over .08 was upheld notwithstanding a previous acquittal of impaired driving. This Court later came to the same conclusion in Casson.  Similarly, an acquittal of over .08  may not be inconsistent with a conviction of impaired driving.



[14]      The verdicts in the case at bar are not legally inconsistent. Since impaired ability to drive is not an essential element of the offence of over .08, the applicant's conviction of that offence was not inconsistent with his earlier acquittal of impaired driving.  



[15]      The applicant contends this case is distinguishable from Pilling and  Casson  as, here, there was evidence the applicant's blood/alcohol level necessarily impaired his ability to drive. His acquittal of impaired driving was conclusive that he was not impaired, whereas the evidence at his trial on the over .08 charge left no doubt his ability to drive was impaired. He submits that "on any realistic view of the evidence, the verdicts cannot be reconciled on any rational or logical basis."  He points to a statement in Casson which, he argues, supports his position and indicates the result in that case may have been different had there been such evidence. The Court said at 512:



The issue of whether or not the accused was impaired was not in issue in the trial of the second count [over .08]. The verdict on the first count [impaired driving] could not be construed as being based on a finding that the accused had consumed no liquor. Further, there was no evidence to support the conclusion that everyones ability to drive is necessarily impaired if their blood alcohol exceeds .08. It follows that the verdict of not guilty on count 1 is not inconsistent with the verdict of guilty on count 2. [emphasis added]


[16]      The highlighted passage does not say that the presence of such evidence in the  trial of an over .08 offence must render a verdict of guilty inconsistent with an acquittal of impaired driving. Impairment was not an issue in the over .08 trial and evidence of the applicant's acquittal of impaired driving and the expert evidence of impairment were irrelevant. The applicant could not, by gratuitously leading evidence that he was necessarily impaired at the material time, put the question of impairment in issue and raise that issue to the status of an essential element of the over .08 offence. It is not, therefore, irrational or illogical to convict of one and acquit of the other. The verdicts are not rationally or logically inconsistent.




[17]      The applicants appeal has no arguable merit. Leave to appeal is denied.




Application heard on March 9, 2004


Memorandum filed at Calgary, Alberta

this 29th day of March, 2004






                                                                                                                                    O’Leary J.A.



E. Tolppanen

for the Crown Respondent


T. E. Foster

for the Applicant




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