Cellphone can affect breathalyzer, expert says

Trial adjourned for Crown witness to reply

A trial for driving under the influence of alcohol has been adjourned following evidence on Friday about factors, including a cellphone, that can affect the readings of a machine that measures the amount of alcohol in a person’s breath.

That evidence was given by James Zager, who was accepted as an expert qualified to give evidence on DUI testing and machines connected with such tests. He gave his evidence from Florida via video link.

Mr. Zager was called on behalf of defendant Simon Courtney, who has pleaded not guilty to driving under the influence of alcohol on Sept. 10, 2011. The matter first came to court in 2012 and there have been numerous adjournments since.

Meanwhile, Courtney was found guilty of causing grievous bodily harm to an elderly tourist couple when his car went onto the sidewalk along West Bay Road in January 2015. He is serving a three-year sentence.

Mr. Zager gave his opinion on the Intoxilyzer 5000 EN, the breath-analysis machine used to test Courtney in 2011.

The defendant had shown a reading of 0.195; the legal limit is 0.100.

After explaining how this reading could have been affected, Mr. Zager concluded that Courtney’s true reading could have been 0.092, which would be below the legal limit.

One factor could have been Courtney’s cellphone, which he said he carried in his breast pocket at the time of testing. It could have been the source of Radio Frequency Interference, Mr. Zager testified. Circuitry in the Intoxilyzer is designed to deal with this potential problem, but his experience had shown that results were unreliable if the circuitry was malfunctioning.

He agreed with defense attorney John Furniss that the simple test of putting a police radio near the breathalyzer would show that the machine was working correctly.

Another factor he described was the individual’s breath temperature, which can be affected by fever or environmental conditions.

Also to be considered was whether the Intoxilyzer had been properly purged before the test was administered.

Mr. Zager agreed that he and Mr. Furniss had gone to the West Bay Police Station to try to see the actual machine used to test the defendant, but had been unable to.

The witness was cross-examined by Crown counsel Alliyah McCarthy. He said the closer the cellphone got to the Intoxilyzer, the higher its effect would be. With the phone in Courtney’s breast pocket, it could have been a matter of inches.

Magistrate Valdis Foldats adjourned the trial until Sept. 27. On that date, Ms. McCarthy expects to call as witness a police inspector who was in charge of traffic management in 2011 and kept logs on the Intoxilyzers and their use for testing.