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A declaratory judgment is a determination of rights without consequential relief. Declaratory judgments can be highly useful for litigants, but they are also somewhat lacking in doctrinal clarity, raising a number of questions that go to the core of the judicial role. What does it mean to have a legal right, or to declare the existence of a legal right, if that right, while recognized, is not enforced? It has been held that a declaratory judgment is available only when there is a real dispute between the parties, but what is a real legal dispute without legal rights that can be enforced? When is it the business of courts to declare the existence of such a right?
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Variability in the blood–breath ratio (BBR) of alcohol is important, because it relates a measurement of the blood-alcohol concentration (BAC) with the co-existing breath-alcohol concentration (BrAC). The BBR is also used to establish the statutory BrAC limit for driving from the existing statutory BAC limits in different countries. The in-vivo BBR depends on a host of analytical, sampling and physiological factors, including subject demographics, time after end of drinking (rising or falling BAC), the nature of the blood draw (whether venous or arterial) and the subject’s breathing pattern prior to exhalation into the breath analyzer. The results from a controlled drinking study involving healthy volunteers (85 men and 15 women) from three ethnic groups (Caucasians, Hispanics and African Americans) were used to evaluate various factors influencing the BBR. Ethanol in breath was determined with a quantitative infrared analyzer (Intoxilyzer 8000) and BAC was determined by headspace gas chromatography (HS-GC). The BAC and BrAC were highly correlated (r = 0.948) and the BBR in the post-absorptive state was 2 382 ± 119 (mean ± SD). The BBR did not depend on gender (female: 2 396 ± 101 and male: 2 380 ± 123, P > 0.05) nor on racial group (Caucasians 2 398 ± 124, African Americans 2 344 ± 119 and Hispanics 2 364 ± 104, P > 0.05). The BBR was lower in subjects with higher breath- and body-temperatures (P < 0.05) and it also decreased with longer exhalation times into the breath-analyzer (P < 0.001). In the post-absorptive state, none of the 100 subjects had a BBR of less than 2 100:1.
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The successful prosecution of drinking drivers under statutory limit laws ultimately must depend on scientifically sound results to prove the blood alcohol concentration of the offending driver. The great majority of these results are obtained by the measurement of alcohol in samples of breath from the driver. The scientific basis for evidential breath alcohol testing in well established. Experiments derived from a recognized scientific law in physics have proven the scientific validity of breath analysis to determine alcohol concentration in the blood. Instruments designed to measure breath alcohol content are based on technology that is capable of producing scientifically sound results. Like Canada, every country that embarks on evidential breath alcohol analysis subjects these instruments to a rigorous evaluation process. These processes determine whether the instruments meet the scientific standards for accuracy, precision, reliability and specificity. Moreover, to achieve scientifically sound results in operational use, user agencies must ensure that approved instruments are operated by qualified personnel using procedures based on good laboratory practice. This review covers the historical development of evidential breath alcohol analysis and its establishment as a legitimate means of measuring the concentration of alcohol in the blood of a suspected drinking-driver.
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The Breathalyzer was designed and developed by R. F. Borkenstein in 1954 for the analysis of alcohol in samples of breath. In this article the authors describe this equipment, its method of operation and accuracy. The factors relating this measurement to the concentration of alcohol in the blood are discussed in detail as are its specificity for alcohol and its application in law enforcement.
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Paul Daly, Jeremy Opolsky, Jake Babad, Julie Lowenstein, 2021 CanLIIDocs 2420
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