dissenting.
As in Moser v. North Dakota State Highway Commissioner, 369 N.W.2d 650 (N.D.1985), the message of the majority opinion is that any sloppiness in administering a blood alcohol test will be viewed as affecting its competency and reliability, rather than its weight as evidence. Again, as a general proposition, I can concur in that message. “Short-cut” evidence must carefully comply with the statutory conditions if it is to be admitted for the adverse administrative action of suspension of driving privileges.
The problem in this case is that the test used, the second test, was “shown to have been performed according to methods and with devices approved by the state toxicologist,” as N.D.C.C. § 39-20-07 requires. It is the aborted first test that was deficient, *394but it is the satisfactory second test that is being condemned.
It is true that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice” under Rule 403, N.D.R.Ev. But, it does not follow that a test fairly administered must be excluded from evidence because its probative value is outweighed by the danger of unfair prejudice from a preceding test which was not fairly administered. The hearing officer admitted into evidence and relied on the second test. He did not rely on the aborted first test.
The bungled circumstances of the first test may bear upon the weight to be given to the second test. I would not fault a hearing officer who declined to suspend driving privileges because he found the circumstances of multiple tests sufficiently unreliable to decline to suspend driving privileges. Compare N.D.R.Ev. Rule 406, on habit and routine practice. But, neither can I fault a hearing officer who found a properly performed test sufficient.
Since I do not consider “the evidence insufficient to warrant the conclusion reached by the ... hearing officer,” N.D. C.C. § 39-20-06, I would affirm.
ERICKSTAD, C.J., concurs.