Saskatoon defence lawyer Mark Brayford says the state must be held to a high standard if it is going to use a breathalyser test instead of a blood test to determine a blood alcohol reading. (CBC)

A change in the form used by police to record breath samples of suspected drunk drivers is leading to acquittals and has some Saskatchewan judges looking for answers about why the forms were changed.

One case, involving a Saskatoon man, is currently before the Saskatchewan Court of Appeal.

The issue involves a form called a certificate of analysis that police use when taking breath samples.

Officers administer two breathalizer tests, 15 minutes apart, to determine the blood alcohol level of suspected drunk drivers. They record the machine's findings on pre-printed forms.

However, the forms currently in use apparently do not have space to record all the relevant information.

"The certificate does not contain an express statement as to when the taking of the second sample commenced," Queen's Bench Judge Duane Koch said in a 2009 decision.

Koch went on to acquit the defendant because of that deficiency.

"[I]t is difficult to understand why the form of certificate currently in use does not include disclosure of the time of the commencement of the taking of the second sample. If it did, the issue would not arise," Koch wrote.

Mark Brayford, the defence lawyer who represented the man who won the acquittal, told CBC News that the problem with the forms arose when police switched to a new batch.

Older forms, which had been in use for more than 10 years, did not have the problem because they included a space to record start and finish times for breath samples.

"It would be really easy to start using the correct form of certificate again," Brayford said.

Other judges have noted the same problem and expressed frustration with the change in forms.

"The ambiguity in the form used by the Crown could easily be corrected," Provincial Court Judge David Arnot wrote in a similar case decided in September 2008.

"I was curious to know why the Crown had changed the pre-printed forms for the Certificate of Analysis. Neither the Crown or the Defence could offer any suggestion as to when and why those changes were made."

Like Koch, Arnot found the accused drunk driver not guilty because of the deficient form.

In the case Arnot heard, the certificate in question was used by police in December 2006.

Arnot has since been named chief commissioner of the Saskatchewan Human Rights Commission.

Brayford told CBC News the issue is important because of the implications of being convicted based on faulty evidence.

He said that if police and prosecutors are using a breathalyzer to prove a blood alcohol reading, "[they] should be required to strictly comply with the rules."

The rules specify that a certificate must indicate when a test began.

Brayford noted that a breathalyzer test is a form of "legal shortcut," to avoid having to take blood samples.

He said anytime the state uses a shortcut, it must be held to a strict standard.

Last fall, Brayford appeared before the Court of Appeal, representing the Saskatoon man who was acquitted by Koch after the Crown appealed Koch's ruling.

Saskatchewan's top court heard arguments on the issue and reserved decision.

Laur'Lei Silzer, a spokeswoman for the Saskatchewan Justice Minister, told CBC News that no one in the department could talk about the issue because it is under appeal.

Silzer added that the RCMP were "responsible for the creation and distribution of the forms."

CBC News asked the RCMP about the forms, but did not receive a response.