dissenting:
I dissent. An incomplete breathalyzer test is not admissible under the circumstances here present.1 In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court stated that “under the [Federal] Rules [of Evidence] the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Id. at 2795, 113 S.Ct. 2786. Here, the majority upholds the admission of this evidence based on a hurried observation2 of a flashing LED readout.3 Experts recommend, and some states have adopted, admission of such breath alcohol evidence when there are two completed tests with printouts of the results. Under the Daubert standard, the government failed to show that the results of the partial breathalyzer test were reliable.
As recognized by the majority, experts in the industry recommend against reliance on a single uncompleted test because such results may be unreliable. See Opinion at 7793 (citing Kurt M. Dubowski, Quality Assurance in Breath-Alcohol Analysis, 18 J. Analytical Toxicology 306 (1994); 2 Richard E. Erwin, Defense of Drunk Driving Cases § 18.03 (3d ed.1995)). Even a completed test is unreliable if, inter alia, the test subject has used breath-fresheners or mouthwash or has regurgitated gastric content. See Du-bowski, supra, at 309.
Indeed, some states have implemented requirements regarding the administration of breath alcohol'tests to assure their reliability, such as California’s requirement set forth by the majority. See Opinion at 1196. These recommendations and requirements illustrate the unreliability of incomplete breath alcohol tests and provide a sound basis for rejecting results from such a test.
The two state cases cited by the majority are clearly distinguishable. In Temple v. State, 679 So.2d 611 (Miss.1996), the Mississippi Supreme Court upheld admission of an uncompleted digital intoxylizer reading of alcoholic blood level where the defendant failed to blow long enough. Id. at 611. The court stated it was “dealing with a machine and people trained to calibrate it and administer it whose credentials to verify its accuracy at some interim period may be questioned”, id. at 613, and noted it was “problematic to allow incomplete results where the machine’s testing mechanism has not run its full course.” Id. However, the court found that on the record before it, “with no real attack on the credentials of the witnesses, or their experience in these circumstances, and no objection to their opinion testimony, the decision to admit the evidence will not be reversed.” Id.
Here, defense counsel repeatedly objected to the admissibility of the incomplete test results. On this record it appears the Supreme Court of Mississippi would not have upheld the admission of the test.
In People v. DeMarasse, 85 N.Y.2d 842, 623 N.Y.S.2d 845, 647 N.E.2d 1353 (1995), the Court of Appeals for New York found the results of an Intoxilyzer test that printed a reading of .217 and the words “deficient sample — value printed was highest obtained” was admissible because the People had established a sufficient foundation. See id. at 1354. The foundation consisted of testimony that the machine was in proper working condition, the test was properly administered, *1198and testimony that “in Intoxilyzer terminology a ‘deficient’ sample is not an invalid sample, but merely one in which the subject did not breathe for a long enough period of time to reach sufficient deep lung air to give the most accurate reading obtainable.” Id. Here, no printout registers any reading.
Because the evidence of Intoxilyzer results lacked an adequate foundation and its reliability was highly questionable, it was inadmissible under Dauberb. The issue is not one of weight; it is about the essence of admissibility of scientific evidence. Since the trial judge was not convinced of the defendant’s guilt based on the remaining evidence, I would reverse.
.The majority's analogy to the use of an "old-fashioned” thermometer is illustrative of the central problem with its opinion. See Opinion at 7793. If one of the new LED thermometers is, according to instructions, supposed to be placed against a child’s forehead for fifteen seconds, a doctor is hardly justified in assuming that a two second measurement gives an "adequate” reading and that the temperature could only go higher. To support a scientific basis for admissibility one must presume that the manufacturer knows the limits of its own testing devices. Out of such assumptions do malpractice cases arise.
. The housing patrol officer who observed the number testified that it appeared for “maybe two seconds”. Appellant's Excerpt of Record 93.
. The machine normally produces a printout of numerical results. The one produced in evidence stated on its face "DEFICIENT SAMPLE”. Appellant's Excerpt of Record 194.