dissenting.
The majority fails to follow the express holding of a previous case that controls the issues that it discusses. Under that case, Officer Bigman failed to comply with the applicable rule when he administered the breath test to defendant, and the evidence is not admissible; there are no further findings for the trial court to make. For that reason, I dissent from the majority’s decision to remand the case. The state’s alternative argument, that under ORS 136.432 the evidence of the breath test is admissible despite the violation of the rule, is also unavailing. We should affirm the trial court’s decision.
What happened in this case is undisputed. Bigman examined defendant’s mouth at 10:20 p.m. and saw no sign that he had vomited or regurgitated or was ingesting anything at the time. Bigman then observed defendant until 10:55 p.m., when he left for a few minutes to take a telephone call. He asked Officer Lenhardt to watch defendant while he was gone. When Bigman returned, he did not ask Lenhardt what had happened or otherwise talk with him. There is no evidence that either made any gestures toward the other. Bigman then administered the test, fewer than 15 minutes after returning.
The question is whether those facts would support a conclusion that Bigman complied with OAR 275-030-070(2), one of the rules for administering a breath test, which required Bigman to be certain that defendant had not taken anything by mouth, vomited, or regurgitated liquid from the stomach for at least 15 minutes before taking the test. In State v. McVay, 83 Or App 312, 731 P2d 466 (1987), we held, under an earlier version of this requirement, that the testing officer had not made certain that the defendant had not done any of those things. See former OAR 257-30-020(l)(b). In McVay, the arresting officer took the defendant to the jail in order to administer the test. During the 15-minute observation period, he left to get the proper form, asking a jailer to observe the defendant while he was gone. On returning, he *700asked the jailer whether the defendant had put anything in his mouth; the jailer answered “No.” We held that it was proper for the officer to rely on a third person for part of the observation and that it was irrelevant that the jailer was not himself certified to operate the equipment. 83 Or App at 314-15. However, there had to be a sufficient factual basis for the officer “to be certain that the pre-test requirements had been met.” Id. at 315 (emphasis supplied). Because the officer failed to ask whether the defendant had vomited or regurgitated, that factual basis was missing and the results of the test were inadmissible under ORS 813.160(l)(b).
“Although an operator may rely on information provided by another officer delegated to observe, the operator must nevertheless ‘make certain’ that the ingestion, vomiting and regurgitation requirements are met before administering the test. * * * At a minimum, that requires that the information be communicated to him.” Id. at 315-16 (emphasis supplied).
We have clarified aspects of McVay in later cases, while retaining intact its essential holding that the testing officer must communicate with the nontesting observer at the time of the test. See, e.g., Gildroy v. MVD, 100 Or App 538, 786 P2d 757, mod on other grounds 102 Or App 138, 793 P2d 332 (1990), aff'd 315 Or App 617, 848 P2d 96 (1993) (testing officer may communicate with observer after test, while filling out checklist); State v. Herring, 112 Or App 83, 827 P2d 932 (1992) (observer’s negative answer when the testing officer asked him if the defendant had done anything was sufficient). Those cases, like McVay, require an express oral communication.
The crucial point in our cases is that the testing officer must communicate with the observer about the driver’s actions before or immediately after administering the test. If the officer does not do that, as a matter of law the officer has not made certain that the requirements of the rule are met. Until now, our cases have not permitted silence to substitute for an inquiry. The state argues, and the majority apparently accepts, that the change from the requirement in former OAR 257-30-020(l)(b) that the officer make certain that the driver has satisfied the criteria to the requirement in the present rule that the officer is certain has some impact on this issue. *701That argument is incorrect. In McVay, we described what the officer had to do in order to satisfy the objective test of the former rule. We focused on whether the officer’s actions were sufficient to allow us to be satisfied that the officer had complied. In our discussion, we used the phrase “be certain” interchangeably with “make certain”; what mattered was the nature of the evidence, not the objectivity or subjectivity of the test.
Although the current rule may be seen to state a subjective test, we must still determine whether the officer’s subjective belief is reasonable. See 152 Or App at 696. The actions that we held essential in McVay remain essential under the current rule; evidence that is objectively insufficient to support a conclusion is necessarily insufficient to support a reasonable belief in that conclusion. Our holding in McVay was that an express oral communication is essential for the officer to make certain that the officer has complied with the rule.1 Because that holding remains controlling, as a matter of law Bigman could not have been certain that he had complied with the rule. It was insufficient for him to rely on Lenhardt’s silence in the absence of some earlier communicated understanding between the officers. The majority’s assertion that there may be “situations where silence is as effective a communication as oral statements,” 152 Or App at 697, is directly contrary to our holding in McVay,2 a holding that the change in the rule does not affect.3
Because I conclude that the trial court correctly held that Bigman failed to comply with OAR 257-030-070(2), I *702must consider the state’s alternative argument that ORS 136.432 makes the evidence admissible. That statute provides:
“A court may not exclude relevant and otherwise admissible evidence in a criminal action on the grounds that it was obtained in violation of any statutory provision unless exclusion is required by:
“(1) The United States Constitution or the Oregon Constitution;
“(2) The rules of evidence governing privileges and the admission of hearsay;
“(3) The rights of the press.” (Emphasis supplied.)
According to the state, the only ground for excluding evidence of the test in this case is a violation of a rule, and ORS 136.432 therefore requires that the evidence be admitted.
The state ignores an essential element of the statute: its provisions apply only to evidence that is “relevant and otherwise admissible.” The rules adopted under. ORS 813.160(l)(b) are not simply guidance for the police to follow in collecting admissible evidence. Rather, they are a legislative and administrative determination of when a breath test is sufficiently reliable that a court may consider it, they thus determine when evidence of a breath test is admissible. A violation of the rules means that the results of the test are not sufficiently reliable to satisfy the foundational requirement for admissibility. If scientific evidence, such as evidence of a breath test, is not reliable, it is not relevant and therefore is not admissible. See OEC 402; 1 Strong, ed., McCormick on Evidence 868 (4th ed 1987).
That the purpose of OAR 257-030-070(2) is to determine when the evidence is admissible is clear from the statutes that gives the rules its authority. ORS 813.300 provides for the admission of a breath test in evidence in any civil or criminal action “arising out of the acts committed by a person driving a motor vehicle while the person is under the influence of intoxicants[.]” That statute provides the authority for a court to admit such a test in evidence. See State v. Balderson, 138 Or App 531, 910 P2d 1138, rev allowed 324 Or 305 (1996). ORS 183.160(1) then establishes the requirements for *703a test to “be valid under ORS 813.300”; those requirements include complying with the relevant rules. In Balderson, we held that compliance with the rules that the State Police adopt pursuant to the legislature’s delegate authority determines whether breath test evidence is admissible.4 The issue in this case, thus, is not whether Bigman violated a rule or a statute in obtaining evidence that would otherwise be admissible.5 Rather, the issue is whether Bigman complied with the requirements for that evidence to be admissible in the first place. Because he did not, the evidence was not “relevant and otherwise admissible,” and ORS 136.432 does not affect the trial court’s conclusion that the officer’s failure to comply with the rule required exclusion.
There is nothing in the record of this case that explains the scientific basis for a breath test, how the specific machine that Bigman used applies those scientific principles, or the procedures that are necessary to make a test on that machine rehable. Thus, the sole basis on which evidence of the breath test can be admissible is ORS 813.160(l)(b), because that statute makes such evidence unnecessary ¿/the officer follows the rules that the State Police adopted. Indeed, the statute suggests that compliance with those rules is the only basis for admitting evidence of a breath test. Failure to comply with the statutes and rules, thus, means that the test has not met the legislative criteria for admissibility.
The purpose of the specific regulation involved in this case, requiring the officer to be certain that the person has not taken anything by mouth, vomited, or regurgitated in the 15 minutes immediately preceding the test, is to ensure that the test is reliable by excluding the possibility of contamination of the breath sample. A similar requirement would be *704essential for admissibility in the absence of a statute. The trial court, thus, did not exclude evidence that was otherwise admissible; it determined that the evidence did not meet the requirements of reliability that the legislature has made the foundation for admissibility.
The statutes and rules governing the conduct of tests that determine a person’s blood alcohol content by examining the person’s breath, thus, are not exclusionary rules that may be subject to ORS 136.432. Rather, they are rules of admissibility. The trial court did not err when it applied those rules to hold that the evidence in this case is not admissible.6 We should affirm its decision. I dissent from the majority’s decision not to do so.
None of our cases, including this one, involves an express agreement, made before the observation, that the observer will speak only if something described in the rule occurs. I do not need to consider the extent to which silence may be a communication in that circumstance, but I would not foreclose the possibility.
That assertion is also wrong. For example, in this case Lenhardt’s silence may have meant that he had not seen any problems; it may also have meant, however, that he was waiting for Bigman to ask him if anything had happened. At least in the absence of a previous agreement between the officers, that silence was not as effective a communication as an oral statement would have been.
The majority suggests that State v. Balderson, 138 Or App 531, 910 P2d 1138, rev allowed 324 Or 305 (1996), in which the driver asserted that she had inaudibly regurgitated during the observation period, is relevant on this point. It is not. Whether the officer observed the driver with sufficient attention is a different issue from whether one officer reasonably relied on another officer’s uncommunicated observations.
Both the plurality opinion and the dissent, which together had the support of seven members of the court, took this position. Balderson, 138 Or App at 535 and n 1 (plurality); 138 Or App at 548-49 (Haselton, J., dissenting). The concurrence, which had the support of two judges, would have held that the rules regulate only the conduct of the officer, not the admissibility of the evidence in court. 138 Or App at 543-45 (Edmonds, J., concurring).
Indeed, the record does not suggest that Bigman obtained the evidence in violation of a rule. So far as the record shows, he followed all of the provisions of the implied consent law, and defendant agreed to give the sample. The question, rather, is whether the evidence that Bigman properly obtained is sufficiently reliable to be admissible.
The text and context of the statutes are sufficiently clear that we do not need to consider legislative history. In any event, the only relevant history that either side has located refers to blood tests, not breath tests, and does not apply to this case.