concurring specially.
I write specially to highlight the distinction between this case and two recent decisions, Moser v. North Dakota State Highway Commissioner, 369 N.W.2d 650 (N.D.1985) and Schirado v. North Dakota State Highway Commissioner, 382 N.W.2d 391 (N.D.1986).
Moser and Schirado each involved a failure to follow procedures already established by the State Toxicologist. Because we assume the State Toxicologist has reasons for establishing procedures related to assuring reliable results, we concluded that the State must establish that a deviation from these established procedures does not affect the dependability of the test results. In the instant case, the State Toxicologist did not approve the simulator as a “device” and we conclude that the statute does not require him to do so. Thus, there is no analagous breach of procedure here. If there should be a rule requiring simulators to be approved by the State Toxicologist, it is the party asserting that proposition who must provide supporting evidence.
VANDE WALLE, J., concurs.