concurring.
Pretrial, defendant moved to exclude the evidence of the Intoxilyzer test result on the basis that the state was unable to prove compliance with the applicable administrative rules for the administration of the test, including OAR 257-30-020(1) (b). That regulation reads:
*540“Pre-Test Requirement. The operator must make certain the subject has not taken anything by mouth, (drinking, smoking, eating, taking medication, etc.) vomited, or regurgitated liquid from his stomach into his mouth, for at least 15 minutes before taking the test[.]”
At the hearing on the motion to exclude the evidence, defendant testified:
‘1Q You’re in the Tigard Police Department and they’ve asked you to blow and —
“A I’d been trying not to cry and it had just been — My throat was constricted, my stomach was constricted and right before he was — I don’t know if he was setting up the machine or testing it or what, but he was working with the machine, and I had a little burp — my friends and I always call it something else, but anyway it came up from my stomach into my throat into my mouth and I just swallowed it back down. I didn’t think anything of it.
“Q Did it make any noise?
“A No.
“Q How long did you do that before you blew into this machine?
“A A minute and a half, two minutes.
“Q Did Officer Manion [the officer administering the test] at any time ask you if you’d regurgitated liquid from your stomach into your mouth?
“A No, he did not.”
Manion testified that he followed the checklist requirements in administering the Intoxilyzer test, including the requirement that he observe defendant for a 15-minute period. He testified:
“Q * * * Okay. Did you hear any sounds from the defendant to indicate anything to you when you were in the intoxilyzer room, anything to you that would indicate that the defendant had something in her mouth?
“A No.
“ Q Did you hear anything that sounded like vomiting or regurgitation?
“A No, I did not.
“Q Did you smell anything that smelled like vomit or regurgitation?
*541“A No, I did not.
“Q Were you watching her face during that time?
“A Yes.
“Q Why would you do that?
“A Sometimes when people regurgitate or vomit or burp they make a facial expression that could indicate that. That’s why I was looking in her face too.
“Q Did you see anything to indicate that?
“A No, I did not.”
The trial court denied defendant’s motion to exclude the evidence of the Intoxilyzer result. It ruled:
“The result of the Intoxilyzer is admitted. The officer correctly administered the Intoxilyzer. He complied with all the requirements of the OAR. In particular he ‘made certain’ that defendant had not regurgitated any liquid. Therefore the test result is admissible to help prove the blood alcohol level of defendant’s blood at the time she was driving.
“Defendant’s testimony that she without any outward or perceptible sign inadvertently brought ‘acid’ into her mouth, even if believed, does not render the test inadmissible. Her testimony may explain the test result and convince the jury that it does not help them determine the blood alcohol content at the time * * *.
“The OAR requirement addresses the officer’s responsibility. He satisfied that. Using all human faculties he made certain. The OAR does not require that the officer make inquiry. This officer had no evidence that would cause any lack of certainty.”
The issue before us is whether the trial court erred in ruling that, even if defendant inadvertently “brought acid into her mouth,” the test result is still admissible as evidence and that OAR 257-30-020(l)(b) does not preclude that result. The rule was adopted by the Oregon State Police Department (OSP) pursuant to the authority granted by the legislature and ORS 813.160(l)(b). ORS 813.160 provides, in pertinent part:
“(1) To be valid under ORS 813.300:
((# ❖
“(b) Chemical analyses of a person’s breath * * * shall be performed according to methods approved by the Department of State Police. For purposes of this paragraph, the Department of State Police shall do all of the following:
*542‘ ‘ (A) Approve methods of performing chemical analyses of a person’s breath.”
ORS 813.300 provides for the use of blood alcohol percentages as evidence in a prosecution for DUII.
The majority holds that if an officer administering an Intoxilyzer test takes every reasonable step to ensure that the test subject has not done anything to contaminate the breath sample, the officer has complied with the rule. It reads our case law to have already decided this issue. Defendant and the dissent rely on our language in State v. Hanson, 19 Or App 498, 528 P2d 100 (1974), for the proposition that as a result of what occurred here, the test result was not “valid” under ORS 813.300 and therefore, it is not admissible evidence. I disagree with both positions.
Although there is language in Hanson that suggests that a contamination of the breath sample will “void” the result of the test, id. at 503, that language is only dicta because there was no violation of the rule in that case. Consequently, we did not undertake to decide whether a violation of the rule affected the admissibility into evidence of the test results. Moreover, no subsequent case has decided what happens when the administering officer complies with the requirements of the rule, but in fact, unknown to him, the breath sample is compromised. The majority’s reliance on the cases that it cites is misplaced because none of those cases involved arguably credible testimony of the kind that occurred in this case.1 Accordingly, whether evidence about contamination requires automatic exclusion of the test result under the administrative rule or simply bears on the admissibility of the breath sample as evidence under the Oregon *543Evidence Code (OEC) section 1042 is an issue of first impression for this court.
‘ ‘In interpreting a statute or a regulation, our task is to ascertain the intent of the body that promulgated it.” Perlenfein and Perlenfein, 316 Or 16, 20, 848 P2d 604 (1993). The principles of statutory construction are no less applicable to the construction of administrative rules. Columbia Steel Castings Co. v. City of Portland, 314 Or 424, 430, 840 P2d 71 (1992). Therefore, a proper analysis requires us to construe the intent of the administrative body that adopted the rule, in this case, OSP. We begin with the text and context of the statutes and the rule, mindful that it is axiomatic that an agency cannot adopt a rule that exceeds the scope of authority granted to it by the legislature.
OAR, 257-20-020(l)(b) was adopted by OSP pursuant to the authority granted to it under ORS 813.300 and ORS 813.160(1). ORS 813.300, when read with ORS 813.160(l)(b), provides: “Tobe valid under ORS 813.300,” a chemical analysis shall be undertaken according to the “methods of performing chemical analysis of a person’s breath” approved by OSP. Did the legislature intend by that language to vest OSP with the authority to determine the admissibility of Intoxilyzer test results in a court of law? The text and context of the statutes could be understood to mean that a test is “invalid” for all purposes when not performed according to the “methods” promulgated by the agency. On the other hand, the language may have been meant to vest OSP with the authority to designate what kinds of machines could be used by the agencies and to regulate the operation of those machines by their officers. Accordingly, if an officer perceives that the sample has been contaminated during the 15-minute observation period, the rule requires him to repeat the observation period. When viewed in that light, it is arguable that the language of the statutes and the rule focuses only on the conduct of the officer and is not intended to regulate the admissibility of evidence in a court. Plainly, *544the language of the statutes is susceptible to either interpretation.
The second level of inquiry about the legislature’s intent involves the underlying legislative history of the statutes. Language similar to what now exists in the statutes originated in Oregon Laws 1965, chapter 574, section 6. That law required the State Board of Health to “approve techniques or methods of performing chemical analyses that are satisfactory for determining alcoholic content of a person’s blood.” See also State v. Fogel, 254 Or 268, 459 P2d 873 (1969) (holding that under former ORS 483.644(1), any machine used to determine blood alcohol content must be approved by the State Board of Health). Subsequently, in Oregon Laws 1979, chapter 410, section 8, the legislature gave OSP the authority to “approve techniques or methods of performing chemical analyses of a person’s breath.” (Emphasis supplied.) There is no indication in any of the predecessor statutes or their underlying legislative history that the legislature intended to do anything more than delegate to the appropriate agency the authority to select the kinds of machines that would be used to perform chemical analysis of a person’s breath. I do not question that implied with that grant of authority is also the authority of the agency to promulgate regulations for the operation of the machines by the agency’s operators. However, the assertion by the majority and the dissent that the statutes grant additional authority to the agency to determine the admissibility into evidence of the test results in a court of law is not supported by any legislative history that I have read. Because there is no indication that the legislature ever intended for OSP to control what courts could admit into evidence, the majority errs when it vest OSP with authority beyond that expressly and impliedly granted by the legislature.
The text of the rule also supports the interpretation that OSP does not have the authority to control what courts may admit into evidence. OAR 275-30-020(1) applies to breath testing with Intoxilyzer models 4011 and 4011 A. Subsection (l)(b) of the rule prescribes the pretest observation requirements that the “operator” of the test must perform. Its focus requires the operator to “make certain” that the subject has not done anything within the 15-minute *545period before taking the test that would result in the subject having a substance in his or her mouth that could affect the test result. The rule says nothing about what happens in a court of law under the circumstances of this case when there is conflicting evidence about the validity of the test sample.
In the absence of any authority on the part of the agency to control the admissibility of evidence in a court of law, this case turns on our standards of review regarding the trial court’s evidentiary findings and rulings of law. The trial court found that the officer correctly administered the Intox-ilyzer, complied with all requirements of the administrative regulations governing the use of the Intoxilyzer, and “in particular, he ‘made certain’ that defendant had not regurgitated any liquid.” We should review the trial court’s ruling like any other preliminary ruling involving admissibility of evidence. Because the evidence supports the trial court’s historical findings, they are binding on this court. Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968).
Nonetheless, defendant appears to argue as a matter of law that the test results are inadmissible as evidence. The trial court concluded that defendant’s testimony did not preclude the admissibility of the test sample into evidence but rather went to the weight to be given the test sample by the triers of fact. Defendant’s argument poses a threshold inquiry: What rule of law was violated by the court’s ruling? Because the statutes and the administrative rule relied on by defendant are inapplicable, she is left with the argument that the trial court erred when it determined that the alleged contamination of the sample did not sufficiently impeach the test result so as to make it inadmissible. Defendant loses that argument also. Although she argues that the prejudicial effect of the test result outweighed its probative value under OEC 403, the kind of “prejudice” contemplated by the rule is not apparent from the record. In sum, the majority’s conclusion that the trial court did not err is correct, albeit for the wrong reason.
The issue in this case is not unlike the issue in State v. O’Key, 321 Or 285, 899 P2d 663 (1995).3 At issue in that *546case was the admissibility into evidence of a horizontal gaze nystagmus (HGN) field sobriety test result in a DUII prosecution. The state contended that the test was admissible because the legislature had delegated authority to OSP in ORS 801.272 to decide what tests fell within the definition of a field sobriety test. ORS 813.135 provides implied consent by motorists to undergo field sobriety tests as defined by ORS 801.272 to determine if they are operating a motor vehicle while under the influence of intoxicants. The court rejected the state’s position, holding:
“Although the legislature has delegated to the OSP after consultation with the Board on Public Safety Standards and Training, the determination of what constitutes a ‘field sobriety test,’ the legislature did not delegate to OSP the authority to decide what evidence is admissible in a prosecution for DUII. It follows that approval of the HGN test by the OSP does not mean that the HGN test evidence is admissible.” 321 Or at 290.
The court proceeded to analyze the admissibility of HGN test results under the OEC as we should do here.4
In summary, defendant’s assertion that her testimony automatically requires exclusion of the test results from evidence is not tenable. The trial court was correct when it opined that, even if defendant’s testimony were to be believed, it would not render the test results inadmissible. No statute or administrative rule requires that result. Rather, as the trial court correctly noted, defendant’s testimony was simply evidence for the jury to consider in determining whether the test result was accurate.
*547For the above reasons, I concur in the lead opinion’s result, although not its reasoning.
Warren, J., joins in this concurrence.In Hansen, there was no evidence that any regurgitation of liquids occurred. The defendant coughed, conduct not covered by the rule or causing contamination of the sample. In State v. Lessar, 105 Or App 512, 805 P2d 730, rev den 311 Or 482 (1991), the defendant did not present any evidence that he had regurgitated, vomited or taken anything by mouth during the 15-minute observation period. In State v. Demings, 116 Or App 394, 841 P2d 660 (1992), rev den 315 Or 443 (1993), again the defendant offered no evidence that he had regurgitated. All of our opinions, 138 Or App at 535 n 1, focus on the state’s burden to demonstrate prima facie compliance with the rule, an issue that is different from the issue of what happens in the event contamination occurs without the knowledge of the administering officer.
OEC 104 provides that the preliminaiy question of admissibility of evidence in a court of law shall be determined by the court. There is no magic about an Intoxilyzer test result that is offered into evidence in court. In concept, it is like any other test result obtained by a procedure performed outside the court and offered as evidence to prove a fact in issue.
The majority and the dissent say that the holding in State v. O’Key is inapposite because in this case the legislature has delegated the appropriate *546authority to OSP to control the admissibility into evidence of the test sample. The holding in O’Key, although not controlling, is instructive because it expresses a rationale for determining the admissibility of evidence when there is a delegation of authority to OSP similar to that granted by the applicable statutes in this case.
The majority states that the analysis made in the concurring opinion was not made by the parties, and therefore, it is inappropriate to decide the case on that basis. I disagree because the arguments of the parties necessarily raise the issue of whether OSP’s rule controls the admissibility into evidence of the test result. By not expressing the correct analysis and deciding the case on the arguments presented, we perpetuate an incorrect understanding of our case law and the significance of the administrative rule.