(dissenting) — The majority rejects the municipal court’s interpretation of former WAC 448-13-040 *87(1999)3 on the false assumption that the BAC Verifier DataMaster (DataMaster) is incapable of recording the temperature of the simulator solution with the accuracy required by a literal reading of the regulation. Majority at 83. But the DataMaster does not measure the temperature of the simulator solution, it merely prompts the operator to confirm whether the temperature of the simulator solution falls within the regulatory range of 34 degrees centigrade plus or minus 0.2 degrees centigrade.4 Clerk’s Papers (CP) at 139 (testimony of Sergeant Gullberg);5 see also id. at 214 (DataMaster operator information manual); id. at 537 (Mem. Op. of Seattle Mun. Ct.). To answer that question accurately, the operator needs to take into account the thermometer’s instrumental error. Id. at 131 (testimony of breath test technician, Trooper Brian Bowers).
As part of the procedure for administering a breath test required by the Washington Administrative Code, a solution of ethanol and water contained in a canister attached to each DataMaster is tested between a DUI (driving under the influence) suspect’s breath samples as a means of verifying that the DataMaster is in proper working order. WAC 448-13-030(8), (22); -050. When heated to 34 degrees centigrade, plus or minus 0.2 degrees centigrade, the solution produces a vapor with a predictable, known alcohol concentration value. WAC 448-13-030(16). By demonstrating its ability to accurately test a known solution at a specified temperature, the operator verifies that the Data-Master is in proper working order. CP at 139 (testimony of Sergeant Gullberg). The temperature is critical because the *88device relies on Henry’s law, an accepted law of physics that holds alcohol molecules will evaporate from a known solution at a predictable rate when heated to a specific temperature. Id.
Department of Licensing v. Cannon, 147 Wn.2d 41, 50 P.3d 627 (2002) holds the party seeking to admit the result of a breath test must first prove compliance with all the relevant procedural safeguards established by the state toxicologist. Cannon affirmed the suppression of the results of a breath test because the State failed to prove the thermometer used in the test had been certified as accurate within plus or minus 0.1 degree centigrade pursuant to WAC 448-13-035. Substantial compliance with the regulations is insufficient. See State v. Baker, 56 Wn.2d 846, 856, 355 P.2d 806 (1960) (“Thus, under the state’s own evidence, appellant may have been given the test after having been under observation for only fourteen minutes. Although this is only one minute less than the required fifteen-minute minimum, the state is bound by its own evidence to the effect that the minimum period of delay must be fifteen minutes.”).
Former WAC 448-13-040 mandates:
The temperature of the solution in the simulator prior to the start of the test must be thirty-four degrees centigrade plus or minus 0.2 degrees centigrade.
(Emphasis added.) The admission of the defendants’ breath tests depends on the city’s proof that the temperature of the solution prior to the start of the test was in fact 34 degrees centigrade plus or minus 0.2 degrees centigrade.
The municipal court found the thermometers attached to the simulator solution in Allison’s and Wendy Sampson’s cases had a variance of plus or minus 0.1 degree centigrade as compared to the State’s reference thermometer, while the thermometer attached to the simulator solution in Mario Hernandez’s case had a variance greater than 0.2 degrees centigrade. CP at 530. Unchallenged facts become verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
*89Therefore, for the trial court to admit the test results for Allison and Sampson, the city needed to prove the actual measured temperature of the solution fell within the range of 33.9 to 34.1 degrees centigrade to allow for the potential 0.1 degree variance. However, the city submitted no evidence of the actual temperature the operator observed. Moreover, because the variance of the thermometer used to obtain Hernandez’s test results exceeded 0.2 degrees centigrade, the city could not have proved compliance with former WAC 448-13-040 in Hernandez’s case at any measured temperature. To allow the city to admit breath tests under the facts of these cases directly contradicts Cannon and Baker.
For these reasons, I respectfully dissent.
Johnson, J., concurs with Sanders, J.
Former WAC 448-13-040 (1999) was amended by emergency rale on April 20, 2001. The emergency provision was extended on July 17, 2001, and adopted as a permanent rale on August 2, 2001.
The BAC DataMaster merely records the operator’s response; it has no internal mechanism to validate the accuracy of the operator’s response. Clerk’s Papers (CP) at 139 (testimony of Sergeant Gullberg, Washington State Patrol, assigned to the Seattle breath alcohol test section); id. at 175 (testimony of Anthony McElroy, breath alcohol consultant).
The city stipulated to the admission of the testimony of Sergeant Gullberg, Trooper Brian Bowers, and others in the hearings before the Renton District Court as evidence of prior sworn testimony. CP at 388.