concurring specially.
The Legislature has stated that the result of chemical analysis of the blood, breath, saliva, or urine of a person arrested for driving or being in actual physical control of a motor vehicle while under the influence of alcohol or drugs is to be received in evidence “when it is shown that the sample was properly obtained and the test was fairly administered, and if the test is shown to have been performed according to methods and with devices approved by the state toxicologist, ...” Section 39-20-07(5), N.D.C.C. [Emphasis supplied.] As Justice Levine has noted in the majority opinion, the State Toxicologist has prescribed a method to be followed if the printed test record is illegible. That method was not followed in this instance.
The dissenting opinion concludes that the failure to follow the procedure goes to the weight, not the admissibility, of the evidence. But that is contrary to what the statute says. Unless we are prepared to say that a determination of admissibility of evidence in these matters is solely the prerogative of the judicial branch of government and controlled by the rules of evidence adopted by this court, I must agree with the majority opinion because the officer did not follow the method prescribed by the State Toxicologist and, by virtue of Section 39-20-07(5), the results of the test are not admissible.
The dissenting opinion apparently attempts to explain away the statutory requirement on the basis that it is the second, not the first, test which the Highway Commissioner relied upon. However, that would always be true where the result of the first test was aborted for whatever reason. Such a rationale would make the approved method quoted in the majority opinion essentially meaningless, i.e., regardless of whether or not the method was followed in the first test, if it is the second test that is relied upon failure to follow the prescribed method goes only to the weight, not the admissibility, of the second test.