concurring specially.
Section 39-20-07(5), N.D.C.C., provides that upon the trial of any proceeding arising out of acts alleged to have been committed while driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor, the results of the chemical analysis must be received in evidence when it is shown that the sample was properly obtained “and if the test is shown to have been performed according to methods and with devices approved by the state toxicologist, and by an individual *655possessing a certificate of qualification to administer the test issued by the state toxicologist.” I agree with the majority opinion that because the Breathalyzer test was not, according to the records, started as required by the operational checklist and techniques approved by the State Toxicologist [see Section 39-20-07(6)(c), N.D.C.C.], it was not shown the test was fairly administered and it should not have been received in evidence.
The variance here is similar to one of the variances discussed in State v. Guthmiller, 350 N.W.2d 600 (N.D.1984), in which we upheld the conviction for driving while under the influence of intoxicating liquor because the State Toxicologist was present at the hearing to explain that the variance in administering the test would have no effect on the validity of the test results. Had the State Toxicologist been called to testify in this case, I would not expect his testimony to change from that in Guthmiller; but we cannot and should not speculate as to what that testimony might be in a different case. It is the burden of the State to show that the test was fairly administered. When the documents offered in evidence to fulfill that burden illustrate on their face that the procedures prescribed by the State Toxicologist have not been followed, the State should call the State Toxicologist to explain that the variance did not affect the validity of the test results if, in fact, that is the case. If the State Toxicologist had been called as a witness, we do not know what answers he might have given in response to questions put to him by counsel for Moser which would create sufficient doubt in the mind of the hearing officer to prevent the suspension of Moser’s license.
We are portrayed by the dissenting opinion as splitting an evidentiary hair too finely. 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. I, for one, do not consider myself “expert” enough to determine whether unexplained variances which will come before us in future appeals involve splitting evidentiary hairs or whether they are “real” variances which should prevent the admission of the test. With all due respect to my colleagues, I must question whether or not they possess the expertise to do so.
If certain variances such as those described in Guthmiller, supra, and in this case do not affect the validity of the results, perhaps the check-list and the techniques approved by the State Toxicologist should so indicate. There may be some danger that the individuals possessing a certificate of qualification to administer the test may become careless if the methods and techniques approved by the State Toxicologist permit variances. If that is a danger, then tests which are not administered according to the approved methods and techniques should not be considered unless the State Toxicologist or his designee testified in person or by deposition that the variances do not affect the test results. I realize the statutes allow a limited amount of time between the arrest and the hearing. However, the statutory scheme adopted by our Legislature also indicates that only tests which are fairly administered may be received into evidence.