dissenting.
[¶ 25] Because I believe this case is more akin to Moser v. North Dakota State Highway Commissioner, 369 N.W.2d 650 (N.D.1985), than Keepseagle v. Backes, 454 N.W.2d 312 (N.D.1990), I respectfully dissent. I do not believe Keepseagle is apposite. Keepseagle involved a blood sample drawn by a nurse at a hospital. On appeal, Keepseagle argued the blood sample must be tested within the two-hour limit prescribed in N.D.C.C. § 39-20-03.1. To construe the statute as Keepseagle urged, would have made the procedure prescribed by the State Toxicologist meaningless, since the procedure provided that after the blood sample was drawn it was to be mailed to the State Toxicologist for analysis. It was obvious that the sample could not have been analyzed within the two-hour period prescribed in § 39-20-03.1 and this Court refused to interpret the statute in that manner, noting “the common sense interpretation is that if the blood sample is drawn within two hours and adequately preserved for analysis, the results are valid.” Keepseagle, at 315.
[¶ 26] Here we are concerned not with a blood sample, but with a breath test using the Intoxilyzer and approved method prescribed by the State Toxicologist for that device. The approved method, as the majority notes, requires as the last step of the test a “room air test.” In Keepseagle there was no argument the directions of the State Toxicologist were not followed. Rather: “Keepseagle does not contend that the directions were not properly followed. He simply contends that the method used in this case and in the past is in error because the language of the statute requires that the blood sample be analyzed within two hours of his driving.” Id. at 316. Phipps, on the other hand, argues the Intoxilyzer test is not finally administered *712until the room air test is completed, and that the room air test was not completed within the two hours prescribed by the statute.
[¶ 27] In Moser, 369 N.W.2d at 653, we held “[a]bsent testimony by the state toxicologist, the foundational requirement necessary to show fair administration of a breathalyzer test and admissibility of the test results is a showing that the test was administered in accordance with the approved methods filed with the clerk of the district court.”
[¶ 28] In Salter v. Hjelle, 415 N.W.2d 801, 803 (N.D.1987), we observed that “[t]he purpose of § 39-20-07(5) and (6) is to ease the requirements for admissibility of chemical test results while ensuring that the test upon which the results are based is fairly administered. The legislature has struck a balance between procedural efficiency and substantive reliability.”
[¶ 29] But, as we observed in Moser, 369 N.W.2d at 654, “[b]ecause the statute permits admission of such evidence without expert witness testimony to establish accuracy and reliability, all the requirements of the statute must be scrupulously met to ensure a uniform basis of testing throughout the State and fair administration.” In Moser, we held the officer’s failure to start the standard test at zero violated the approved procedures on file with the clerk of the district court. “Therefore, the minimum foundational requirement to show fair administration of the Breathalyzer test and admissibility of the Breathalyzer test result is absent because the test clearly was not performed according to methods approved by the state toxicologist.” Id. at 654. Perhaps, as in Moser at 654, “the foundational defect might have been cured through testimony of the state toxicologist” but there was no such testimony here. Perhaps the completion of the room air test is not an integral part of the Intoxilyzer test and therefore need not be completed within the two hours. “But unless we are to apply our own ‘expert opinion’ to these matters, once we veer from the regulations promulgated by the State Toxicologist, we are on uncharted seas.” Id. at 655 (Vande Walle, J., concurring specially).
[¶ 30] I agree with the trial court that under the current prescribed method the final room air test is part of the entire Intoxilyzer test which must be administered within the two-hour period required by the statute.
[¶ 31] I would affirm the judgment reversing the license suspension.
[¶ 31] Gerald W. Vande Walle, C.J.