concurring.
Although I agree with the majority that defendant’s conviction should be affirmed, I disagree with its discussion of the issue of the admissibility of the HGN test evidence at trial. The majority holds that the state must first lay a scientific foundation to present evidence of the HGN test. State u. Reed, 83 Or App 451, 732 P2d 66 (1987). I believe that the enactment of ORS 813.135 and ORS 801.272 eliminates the need to lay such a foundation.
Enacted in 1989, ORS 813.135 is an implied consent statute, which provides:
“Any person who operates a vehicle upon premises open to the public or the highways of the state shall be deemed to have given consent to submit to field sobriety tests upon the request of a police officer for the purpose of determining if the person is under the influence of intoxicants if the police officer reasonably suspects the person has committed the offense of driving while under the influence of intoxicants in violation of ORS 813.010 or a municipal ordinance. Before the tests are administered, the person requested to take the tests shall be informed of the consequences of refusing to take or failing to submit to the tests under ORS 813.136.” (Emphasis supplied.)
ORS 801.272, which was enacted at the same time, provides:
“ ‘Field sobriety test’ means a physical or mental test, approved by the Department of State Police by rule after consultation with the Board on Public Safety Standards and Training, that enables a police officer or trier of fact to screen for or detect probable impairment from intoxicating liquor, a controlled substance or combination of intoxicating liquor and a controlled substance.” (Emphasis supplied.)
Through the promulgation of OAR 257-25-020, the state police have adopted a number of field sobriety tests, among them the HGN test. OAR 257-25-020(l)(a).
In concluding that the above statutes have not eliminated the need to lay an independent scientific foundation as a prerequisite to the admission of HGN test evidence, the majority purports to rely on the plain language of the statutes. It asserts that “the statutes say nothing about the *315reliability of an HGN test as an indicator of alcohol induced impairment. Their focus concerns the consequences of a refusal to take a field sobriety test.” The majority further states that “there is no statute that says that HGN test results are an indicator of an impairment to operate a motor vehicle.”
In reaching its conclusion, however, the majority ignores some critical language in the pertinent statutes. The statutes plainly delegate to the Department of State Police, in consultation with the Board on Public Safety Standards and Training, the authority to review and approve physical or mental tests “that enable a police officer or trier of fact to screen for or detect probable impairment” from intoxicating substances. Significantly, the statute provides that the test is to aid the trier of fact, as well as the state police, to detect probable impairment. If, as the majority asserts, the only purpose of the statutes is to allow the admission of a person’s refusal to take one of the approved tests, the legislature would have had no reason to be concerned whether the test would aid a trier of fact in determining probable impairment.1
In my view, the legislature properly delegated authority to review and approve field sobriety tests to the agency with expertise in the area. See State v. Acosta, 112 Or App 191, 196, 827 P2d 1368 (1992). State police approval of the HGN test removes the necessity of having to lay a scientific foundation for the test as a prerequisite to the admission of evidence concerning its administration of the test. This is not to say that such evidence may not be subject to challenges going to the weight and reliability of the evidence. Challenges to the administration of the test in a particular case may always be made. Further, under the APA, review of the administrative rules approving the test and establishing procedures for the proper administration of the test is available. ORS 183.400.
In this case, the police officer testified that he administered the HGN test to defendant by the method specified in *316OAR 257-25-020(1). I would hold that that was a proper foundation for admission of the evidence.
Richardson, C. J., and Rossman and Leeson, JJ., join in this concurring opinion.I note that evidence of field sobriety tests have “long been held admissible in the absence of the statutory consent provisions.” State v. Trenary, 316 Or 172,178, 850 P2d 356 (1993).