Earthquake!

When John Howes first started testifying, the alcohol experts were using slide rules to calculate BACs. I actually learned how to use a slide rule when I was in Grade 12 in math class in high school. The slide rule was the standard tool for forensic calculations before electronic calculators became available. It required skill and practice to use accurately – and it was easy to sabotage.

In old copies of the Defense of Drunk Driving, lawyers were advised to ask to see the expert’s slide rule. Then secretly take the slider out and insert it upside down. Next, ask the expert to perform multiple rapid calculations, which would rattle the expert on the stand who may lose credibility with the judge or jury. This was one of the earliest tricks used by defence lawyers to challenge Breathalyzer evidence. It was a simple but effective tactic that could make even an experienced expert appear incompetent.

It was quite a change when small portable hand calculators were available to calculate BACs on the stand easily. But calculators were new, and typically judges and courts don’t like anything new. When one defence counsel raised a point about the calculator’s accuracy and reliability, the judge ruled that John Howes could not use the calculator. As he had not brought the obsolete slide rule, he had to perform all calculations by hand – using long division and multiplication on paper in front of the jury.

From the bench, the judge kept looking over and demanded: “Are you using that calculator?” Fortunately, by the time I was qualified to testify as a forensic toxicologist, the calculator was widely accepted, and I was never asked that question. But John Howes had to endure the transition period when new technology was viewed with suspicion by the courts.

A 1985 newspaper clipping from a coroner’s inquest shows John Howes’s expertise in action. A Kingston Township man who was killed in a struggle with a provincial police officer had nine bottles of beer in his system just before his death and had probably consumed 13 to 14 in a six-hour period before that. John Howes, a toxicologist with the Centre of Forensic Sciences, told a coroner’s jury that the alcohol level in Russell McNairn’s body was “very, very high.” He was extremely impaired.

Howes said that the estimate was based on samples of blood, urine and eye fluid taken from McNairn’s body after he was shot and killed. Asked about the effect of alcohol consumption, Howes said that a person’s judgment and muscle co-ordination would be lessened. Actual physical strength would not be lessened, although an individual’s ability to use this strength skilfully would be impaired. This distinction between strength and coordination is crucial in Breathalyzer cases where defendants claim they were still functioning normally despite high BACs.

In one case of impaired driving where the driver blew 180 mg/100mL on the Borkenstein Breathalyzer, the defence lawyer asked him about other causes for the signs of impairment besides alcohol consumption.

Lawyer: Now Mr. Howes, what could cause a person to be red-faced or flushed?

JH: He could have had a sunburn.

Lawyer: Excellent, Mr. Howes. What could cause bloodshot eyes?

JH: He could have been swimming in a chlorine pool.

Lawyer: Now what about the odour of an alcoholic beverage?

JH: Perhaps non-alcohol beer.

John Howes just answered the questions without arguing or protesting, according to the LUCAS approach. He did not take the bait. He did not become defensive. He simply gave straightforward, plausible answers that undermined the defence’s attempt to create doubt. The LUCAS approach – Listen, Understand, Consider, Answer, Shut-up – required the expert to answer only what was asked and nothing more. It was a discipline that John Howes had perfected over decades of testimony.

The final question by the lawyer was:

Lawyer: Now what could explain why my client swayed and had to hold the walls to keep himself up?

JH: Earthquake.

The judge laughed and convicted the driver of impaired driving. The answer would probably not work in California, but in Ontario we haven’t had a significant earthquake in centuries. The absurdity of the answer highlighted the absurdity of the defence’s attempt to explain away every sign of impairment. It was a moment of courtroom genius that only John Howes could have delivered.

Unfortunately, after he retired from the CFS I did not have much contact with him. But I did find his obituary. John Howes passed away peacefully at the Kingston General Hospital on December 22, 2013, at the age of 85. He was predeceased by his parents Joseph and Mary Howes and his brothers William, Gerald and Richard.

He was survived by his sisters Noreen Sauer of Syracuse, NY, Mary Borovsky of Oshawa and sister-in-law Eleanor Howes. Family and friends were received at the Trousdale Funeral Home in Sydenham, and a Mass of Christian Funeral was held at The Sacred Heart of Jesus Parish in Bedford.

John Howes co-authored one of the earliest papers on the accuracy of the Borkenstein Breathalyzer compared to blood alcohol: “A Study of the Accuracy of the Breathalyzer as Operated by Police Personnel” (Journal of Forensic Sciences, 1967). This paper was foundational in establishing the reliability of Breathalyzer evidence in Canadian courts. His legacy lives on in every forensic toxicologist who steps into a courtroom and follows the LUCAS approach.

John Howes was a giant in forensic science, and his contributions to Breathalyzer technology and courtroom testimony remain unmatched. He taught us all how to Listen, Understand, Consider, Answer, and Shut-up.

Reference

John did co-author one of the earliest papers on the accuracy of the Borkenstein Breathalyzer compared to blood alcohol.

Howes, J.R., Hallett, R.A., and Lucas, D.M., “A Study of the Accuracy of the Breathalyzer as Operated by Police Personnel”, Journal of Forensic Sciences, 12(4): 444-453, 1967