DISSENTING.
I respectfully dissent because I cannot conclude that an adequate foundation for the IntoxQyzer 5000 test results was laid in this case.
With respect to tests for alcohol concentration under Idaho Code § 18-8004, the State must provide foundation evidence consisting of either expert testimony or evidence that the test was administered by a method approved by the Department of Law Enforcement and in conformity with the Department’s approved procedures. State v. Chavan, 132 Idaho 341, 971 P.2d 1165 (Ct. App.1998); State v. Bell, 115 Idaho 36, 39-40, 764 P.2d 113, 116-17 (Ct.App.1988). Here, it is undisputed that the breath sample tests were not obtained in compliance with Department-approved procedures because the defendant did not blow into the Intoxilyzer 5000 correctly and the machine therefore indicated it had received deficient samples. The adequacy of the foundation in this case thus turns upon the testimony of the expert witness.
The admissibility of scientific or technical evidence is governed by Idaho Rule of Evidence 702, which specifies that a qualified expert may testify to scientific or technical knowledge if such evidence “will assist the trier of fact to understand the evidence or to determine a fact in issue.” Therefore, the foundational issue here is whether the Intoxilyzer 5000 test results have been shown to be sufficiently reliable and probative that they would be helpful to a jury in resolving the factual issues of the case.
In my view, the expert’s testimony falls short of showing that the breath test results would be helpful to the jury in determining whether Mazzuca was driving under the influence of alcohol, as that offense is defined in I.C. § 18-8004. The expert testified that the Intoxilyzer 5000 accurately measured the alcohol content of the air samples presented, but the inadequacy of those samples to accurately reflect the true breath alcohol concentration of the defendant is the very reason that the tests did not comply with Department standards. The correct foundational query is not merely whether the machine accurately tested the samples that were given, but also whether those samples accurately reflect the subject’s alcohol concentration as that term is used in I.C. § 18-8004. The expert gave no testimony on this second part of the inquiry. Unlike the experts in some of the cases from other jurisdictions cited in the majority opinion, the witness here did not opine that the results of a deficient sample will always be lower than or equal to the results obtained from a deep lung air sample. Indeed, the expert stated that the deficient samples “may not represent what we refer to as deep lung air.” From this foundational testimony, one cannot ascertain whether the alcohol content of the deficient samples bears any relationship to the result that would have been achieved with an adequate breath sample. It is a small, but in my judgment criti*872cal, omission from the foundational evidence presented by the State.
To bolster its holding that this foundation suffices, the majority opinion relies upon several eases from other jurisdictions where the expert testimony was more complete. In my view, this reliance is misplaced, for expert testimony given in other eases cannot substitute for an evidentiary foundation properly presented before the magistrate. I recognize that in an Idaho Supreme Court decision, State v. Garrett, 119 Idaho 878, 811 P.2d 488 (1991), the plurality opinion appears to have relied upon decisions from other jurisdictions, and evidence presented in those cases, to determine that the horizontal gaze nystagmus (HGN) test was reliable and admissible. However, the author of that opinion applied the Frye1 test for the admissibility of scientific evidence, a test which turned upon whether the evidence was of a type generally accepted as reliable in the scientific community. The opinion relied upon decisions from elsewhere to determine that the HGN test was based on a generally accepted scientific theory and therefore satisfied the Frye standard. In separate opinions, two justices expressed their disagreement with use of the Frye test, stating that it had previously been rejected by the Idaho Supreme Court, and a third justice concurred in the result without joining in the plurality opinion. Since then, the Idaho Supreme Court has made it crystal clear that the Frye test is not to be utilized as the standard for admission of scientific or technical evidence. See State v. Faught, 127 Idaho 873, 876, 908 P.2d 566, 569 (1995). Rather, the proper standard is that stated in I.R.E. 702. Id.; State v. Gleason, 123 Idaho 62, 65, 844 P.2d 691, 694 (1992). Hence, the purpose for which the Garrett plurality opinion consulted cases from other jurisdictions pertained to a foundation test that is no longer used in this state.
In Faught, the Idaho Supreme Court confirmed that the correct approach regarding foundation for scientific evidence is that which it had taken in State v. Crea, 119 Idaho 352, 806 P.2d 445 (1991). In Crea, where the issue was the admissibility of breath tests conducted with the Intoximeter 3000, the Court stated, “We recognize and agree that the Intoximeter 3000 has gained scientific acceptance in Idaho as noted in State v. Wilson, [116 Idaho 771, 780 P.2d 93 (1989) ], and in numerous other jurisdictions as observed in State v. Hartwig, [112 Idaho 370, 732 P.2d 339 (Ct.App.1987) ], however, use of test results from the Intoximeter 3000 in the courts of this state remains subject to proper foundation and evidence being presented.” Crea, 119 Idaho at 354, 806 P.2d at 447. Thus, the admissibility of the Intoxilyzer 5000 tests at issue here turns upon the sufficiency of the foundational testimony presented to the magistrate in this case, not information contained in decisions from other courts.
If the necessary foundation could be laid to establish that the alcohol concentration readings on the deficient breath samples were necessarily lower than or equal to the concentration that would have been found in a deep lung air sample, the test results would meet the Rule 702 standard of reliability and usefulness to determine whether the defendant had an alcohol concentration in excess of the legal limit specified in I.C. § 18-8004. However, that foundation was not presented in this case.
. Frye v. United States, 293 F. 1013 (D.C.Cir. 1923).