concurring in judgment only.
I concur in judgment only for this case in recognition of the decision reached by the majority of the entire panel of this court that will establish this court's position and judgment for the disposition of all similar cases as well as in the cause sub judice. However, I believe that a directive in the form of a regulation from an administrative agency, like the Department of Health, requires a prospective application unless there has been a prior determination indicating a contrary intent from the administrative body. I believe that administrative rules and regulations are presumed, like statute^ to be prospective in their application. See, Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St. 3d 100, paragraph two of the syllabus. An administrative rule issued pursuant to statutory authority has the force and effect of law unless it is unreasonable or is in clear conflict with a similar statute governing the same subject matter. Youngstown Sheet & Tube Co. v. Lindley (1988), 38 Ohio St. 3d 232, 234. Thus, I believe that a regulation from the Department of Health, like a statute; must be applied prospectively, which would mandate that each breath testing instrument be tested for susceptibility to radio frequency interference following the effective data of the regulation.
Technology is an effective tool for law enforcement. Many testing devices have proven to be reliable in the prosecution and conviction of drunken drivers, who have devastated the lives of so many innocent victima However, I am *345also concerned that an improperly calibrated device may also cause a similar devastation to the reputation of an accused and result in an unjust conviction.
The formulation of a regulation may arise from either an absence of a definitive procedure, or from a desire to establish uniformity in existing procedures. I believe that the Health Department's establishment of the regulation requiring the testing of all breath testing devices was to establish an uniform procedure. This new regulation would put to rest the questions arising from possible faulty readings resulting from radio frequency interference. Therefore, to eliminate the concern of an incorrect breath test result, all machines should be tested after the regulation's effective date of January 1, 1987, and in accordance with the words of the regulation.
For the reasons stated above I concur in judgment only to establish the position chosen by the majority of the members of this court.