dissenting. I must respectfully dissent. I agree with the majority that “a person charged with a violation under R.C. 4511.19 faces serious consequences solely dependent upon the results of a chemical test conducted by an instrument installed, controlled, maintained, regulated, checked and guarded by the state’s law enforcement agencies.” I also agree that the Director of Health is delegated the authority to adopt regulations for the use of these instruments. Once promulgated, these regulations are to be given the force and effect of law. Doyle v. Ohio Bur. of Motor Vehicles (1990), 51 Ohio St.3d 46, 554 N.E.2d 97, paragraph one of the syllabus. I disagree, however, with the majority’s interpretation of Ohio Adm.Code 3701-53-02(C)(2)(a) concerning whether the Director of Health intends that an RFI survey be conducted after an instrument is moved from its testing location for maintenance and returned to that location. Instead, I agree completely with the thoughtful dissent written by Presiding Judge Hadley in the court of appeals below.
It has been well established that breath testing instruments such as the Intoxilyzer CM4011 used in this case can be affected by electrical interference from nearby radio transmissions. See Taylor, Drunk Driving Defense (3 Ed.1991), Section 6.0.5. This susceptibility to radio frequency interference can result in inaccurate test results. Id. To deal with this problem, the Director of Health promulgated rules limiting the use of radio transmitting antennae during tests and requiring periodic RFI surveys.
In its analysis of Ohio Adm.Code 3701-53-02(C)(2)(a), the majority focuses on the words “location” and “used for testing” to conclude that a new RFI survey is required only when the instrument is relocated more than one foot and testing occurs in that new location. However, as Judge Hadley points out, the words “when used for testing” can be read to refer to the instrument itself, as opposed to the reason for the relocation. He cites to language in Ohio Adm.Code 3701-53-02(A) that states that “ * * * [i]n addition to any other purposes for which they may be used, evidential breath testing instru*520ments are approved in determining whether an individual’s breath contains a concentration of alcohol * * Given that the regulations contemplate that these instruments may be used for purposes other than testing, this places the emphasis in subsection (C)(2)(a) on the movement of the machine more than one foot rather than the reason it is moved. Therefore, thé important facts are that the instrument is used for testing and that it is moved more than one foot. The regulation does not state that the instrument can be moved and then returned to within one foot of its original location without a new RFI survey.
I believe the majority also overemphasizes that the purpose of the RFI survey is to test the environment for electromagnetic or radio interference. It is clear from the regulations that the Director of Health has determined that a new RFI survey must be conducted when certain changes occur in the environment or certain changes occur to the instrument itself that may cause radio and electromagnetic interference to affect the test results. For example, subsection (C)(2)(b) requires a new RFI survey if the axis of the instrument is changed, subsection (C)(2)(e) requires a new RFI survey if electronic components are changed other than with original replacement parts or factory-authorized parts, and subsection (C)(2)(f) requires a new RFI survey if a new machine is used. In each of these situations the environment itself has not changed. Instead, the concern is that the environment will affect the accuracy of the machine’s results because of a change in the machine.
This case was certified to us by the Third Appellate District because its decision was in conflict with a decision by the Fifth Appellate District in State v. Young (Apr. 11, 1991), Delaware App. No. 90-CA-40, unreported, 1991 WL 57176. The Fifth Appellate District opinion was unanimous that a new RFI survey is required after a machine is removed for repair and returned to the testing location. The Third Appellate District decision that no RFI survey was required was not unanimous and our decision is not unanimous. This disparity in interpretation indicates that this regulation is at best ambiguous. Given this ambiguity and given the serious consequences dependent on the results of these tests, it is essential that we resolve the ambiguity against the state, as we are required to do under R.C. 2901.04.
We must keep in mind that R.C. 4511.19(A)(3) is a per se offense. A defendant is found guilty if the trier of fact finds that the defendant was operating a motor vehicle and his or her intoxilyzer reading was at the proscribed level. Therefore, guilt or innocence rests on the accuracy of the test results. Newark v. Lucas (1988), 40 Ohio St.3d 100, 532 N.E.2d 130; Defiance v. Kretz (1991), 60 Ohio St.3d 1, 573 N.E.2d 32. Requiring a new RFI survey after a machine has been removed for repairs and returned to the *521test site assures certainty as to its results without placing an onerous, expensive or time-consuming burden on the testing agency. On the other hand, eliminating the requirement of a new RFI survey could compromise the accuracy of the test results. If we are to err in interpreting the regulation we should err in a way which leads to more, not less, accurate results.2
. In fairness, I acknowledge the Fourth Appellate District’s decision in State v. Mulhem (1991), 72 Ohio App.3d 250, 594 N.E.2d 630, in which that court interpreted the predecessor to Ohio Adm.Code 3701-53-02(0), which stated: “A new survey shall be conducted when a breath testing instrument’s spatial placement or axis is changed from that designated in the most recent form.” In Mulhem, the state offered as an exhibit a letter from the Department of Health indicating the department’s position that a new RFI survey was not required if the machine was removed for repair and returned “to the same location facing the same way.” The court of appeals deferred to the department’s interpretation of its regulation. While I recognize that due deference should be given to an agency’s interpretation of its own regulations, I also note that there is nothing in the record before us to indicate the department’s interpretation of the current regulation. Given the ambiguity of the language of the regulation, the potential for the machine to be returned from repair but not placed precisely in the exact location from which it was previously RFI-surveyed, and the consequences to defendants charged with per se offenses who can be convicted based solely on the results of these chemical tests, I still believe that a new RFI survey should be conducted after a machine is removed for servicing and returned to the testing site. This best assures the accuracy of the test results.