I dissent. In my opinion, the majority decision is erroneous (1) because it ignores the pertinent decisional law of other jurisdictions, which is exclusively to the contrary; (2) because it overlooks the full dimensions of the “legislative scheme” of the Evidence Code upon which it expressly relies; and (3) because it rejects the one California decision which is correct, in applying the legislative intent underlying Health and Safety Code section 436.52 and the breath-testing regulations promulgated pursuant thereto (People v. Foulger (1972) 26 Cal.App.3d Supp. 1 [103 Cal.Rptr. 156]), upon the strength of two subsequent decisions which are incorrect and should not be followed. (People v. Brannon (1973) 32 Cal.App.3d 971 [108 Cal.Rptr. 620]; People v. Rawlings (1974) 42 Cal.App.3d 952 [117 Cal.Rptr. 651].) I also think (4) that the result reached by the majority should be avoided because it may undermine the valuable law enforcement program of which the breath-testing regulations are a part.
(1)
I do not dispute any part of the majority’s carefully compiled summary of the pertinent statutes and decisional law of other jurisdictions. In net effect, however, it shows that only ten of those jurisdictions have statutory and regulatory programs which are similar to California’s on the subject of chemical testing for blood-alcohol content, that the courts of only two of them (Iowa and Ohio) have passed upon the admissibility of blood-alcohol evidence which is not shown to have been processed in compliance with the applicable regulations, and that both courts have held the evidence inadmissible. (State v. Wallin (Iowa 1972) 195 N.W.2d 95, 98; State v. Hansen (Iowa 1972) 203 N.W.2d 216, 223; State v. Sickles (1970) 25 Ohio App.2d 1 [54 Ohio Ops.2d 3, 265 N.E.2d 787, 789]; State v. Miracle (1973) 33 Ohio App.2d 440 [62 Ohio Ops.2d 440, 294 N.E.2d 903, 906-908].) The Iowa and Ohio decisions thus comprise all of the relevant authority from other jurisdictions. I consider them persuasive, and I see no reason that a different result should be reached in California.
(2)
Speaking to the Iowa and Ohio decisions, the majority opinion cites the language of section 351 of the California Evidence Code (“Except as *569otherwise provided by statute, all relevant evidence is admissible”); notes that the Iowa and Ohio decisions do not mention “such a statutory scheme explicitly favoring admissibility in the absence of a contrary expression in a statute”; and goes on to observe that no such “contrary expression” appears in Health and Safety Code section 436.52 or in the regulations adopted pursuant to it. Without looking to Health and Safety Code section 436.52 at all,1 I find such “contrary expression in . . . statute[s]” which appear in the Evidence Code itself and within the “legislative scheme” framed by section 351.
I refer to Evidence Code sections 401 and 405, subdivision (a). Under section 401, the breath-test results introduced by the People in this case were “ ‘proffered evidence’ . . . , the admissibility ... of which is dependent upon the existence ... of a preliminary fact.” The “preliminary fact” (see Evid. Code, § 400) is the maintenance of the breath-testing instrument in compliance with the periodic calibration requirement prescribed in the regulation violated. (Cal. Admin. Code, tit. 17, § 1221.4, subd. (b), hereinafter cited as “regulation 1221.4.”) Evidence Code section 405, subdivision (a), requires the exclusion of “proffered evidence” where there is no showing of the “preliminary fact” which is prerequisite to its admissibility.
In combination, sections 401 and 405, subdivision (a), express a newly worded codification of the longstanding rule that evidence is inadmissible, notwithstanding its relevance, where its authenticity requires a foundation which is not laid. (Witkin, Cal. Evidence (2d ed. 1966) §§ 1083 [pp. 1003-1004], 1089 [pp. 1009-1010].) The sum of the two sections is an exception, “provided by statute” as mentioned in section 351, to the general rule of that section to the effect that “all relevant evidence is admissible.” Stated another way: Section 351 provides that all relevant evidence is admissible “except where otherwise provided by statute.” If it is “proffered evidence” for which a foundation is required but not laid, it is inadmissible because it is “otherwise provided by statute” in sections 401 and 405, subdivision (a). No foundation for the breath-test results having been laid here, I would hold them inadmissible.
I do not share the majority’s concern that the requirement of such foundation, as a condition precedent of admissibility, will bring about “a *570contest to find a technical defect in the test procedure so as to have the evidence excluded.” In the first place, such a “contest” is commonplace in foundational matters. Secondly, an equally burdensome “contest” will occur, in any event, where the breath-test results are admitted subject to the defendant’s right (which the majority would accord him) “to discredit the results by showing that noncompliance [with the regulations] affected their validity.” Finally, the purpose of the pertinent statutes (which is to insure the accuracy of the tested evidence, as I point out below) means that noncompliance with the regulations is of materially greater substance than a mere “technical defect.”
(3)
I reach the foregoing conclusion without initially resorting to the legislative intent which may be discerned from the silence of Health and Safety Code section 436.52 as to the admissibility of breath-test results produced in violation of regulation 1221.4.2 I would apply the reasoning of the Foulger court in this regard: “While we agree that an express provision requiring compliance with the statute as a condition of admissibility of blood alcohol tests would have clearly delineated the intent of the Legislature, the absence of such provisions does not necessarily indicate an intent of the Legislature that tests which do not comply with the law are nevertheless admissible in evidence. . . . ‘Shall’ is mandatory (Health & Saf. Code, § 16). ... It is apparent that the Legislature gave due consideration to the respective interests of all persons who might be affected by the new law and had reasonable expectation that law enforcement agencies would not attempt to use blood alcohol tests which did not comply with the statutory standards. To permit the use of such tests by law enforcement agencies in the prosecution of criminal cases would frustrate the very purpose of the law. We do not believe that the Legislature in establishing higher standards for reliability and impartiality of blood alcohol tests by or for law enforcement agencies *571intended to embark upon an exercise in futility(People v. Foulger, supra, 26 Cal.App.3d Supp. 1 at pp. 4-5 [italics added].)
Foulger is not to be disregarded solely because it was decided at the superior court level of the appellate structure. (6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 671, pp. 4584-4585.) It was “disapproved” in the subsequent Court of Appeal decisions cited above (People v. Brannon, supra, 32 Cal.App.3d 971 at p. 978; People v. Rawlings, supra, 42 Cal.App.3d 952 at p. 956), but these decisions are not binding upon this court if we disagree with them. (6 Witkin, op. cit., Appeal, § 667, par. (1), p. 4580.)
I respectfully disagree with Brannon upon the grounds—perceptively stated in a contemporaneous comment with which I agree—that the court in that case reached an incorrect conclusion by following the wrong precedents, overlooking the right ones, erroneously limiting the exclusionary concept to constitutional (as distinguished from statutory) violations, and misinterpreting the pertinent legislative intent as to the admissibility question presented. (Note (1974) 7 Loyola L.A. L.Rev. 201.) I disagree with Rawlings because it follows Brannon and because its “disapproval” of Foulger is stated in dicta only. (See People v. Rawlings, supra, 42 Cal.App.3d 952 at p. 956; 6 Witkin, op. cit. supra, Appeal, §§ 676-677, pp. 4589-4591.) I therefore conclude that the exclusionary result, correctly reached in Foulger as quoted above, has effectively survived its “disapproval” in Brannon and Rawlings alike.
The express purpose of the breath-testing regulations mandated by Health and Safety Code section 436.52, as expressly stated in section 436.50, is “to insure the competence of... [licensed].. . laboratories and employees to prepare, analyze, and report the results of such tests.” Speaking to the full chapter in which the two sections appear, the Attorney General has correctly stated that its purpose is “to insure competency in the securing of accurate evidence.” (56 Ops. Cal. Atty. Gen. 38, 39 [italics added].) The vital importance of accurate blood-alcohol-test results, in a drunk driving prosecution, has been explicitly recognized by our highest courts. (Schmerber v. California (1966) 384 U.S. 757, 771 [16 L.Ed.2d 908, 920, 86 S.Ct. 1826]; People v. Sudduth (1966) 65 Cal.2d 543, 546 [55 Cal.Rptr. 393, 421 P.2d 401]; People v. Hitch (1974) 12 Cal.3d 641, 647 [117 Cal.Rptr. 9, 527 P.2d 361], See also People v. Foulger, supra, 26 Cal.App.3d Supp. 1 at p. 5.)
*572The majority hold in effect that breath-test results which may not be accurate, for noncompliance with the testing regulations, are nevertheless admissible. I agree with the Foulger court that this result “would frustrate the very purpose of the law.” (People v. Foulger, quoted supra, 26 Cal.App.3d Supp. 1 at p. 5.) I am unable to join in the majority’s rationalization that any question of the accuracy of the illegally tested evidence is to be addressed to its weight alone: in light of the purpose of the regulations, their violation in the breath-testing process means that .the results are without any weight at all.
Moreover, the view that a violation of the regulations reaches only the weight of the evidence will permit the prosecution to introduce expert testimony disparaging the wisdom of the regulations themselves. (This is substantially what happened in the present case.) The Legislature thus stands twice second-guessed, once by the admission of the evidence and again by testimony. I am unwilling to countenance this result in either instance.
(4)
I also disagree with the majority holding because it portends substantial problems in the effective enforcement of the drunk driving laws themselves. Under the implied consent law, a California motorist is not deemed to have consented to the giving of a specimen of his blood, breath or urine for testing; the specimen may constitutionally be taken from him without his consent. (Schmerber v. California, supra, 384 U.S. 757 at pp. 758-759, 772 [16 L.Ed.2d 908 at pp. 912-913, 920]; People v. Superior Court (Hawkins) (1972) 6 Cal.3d 757, 761 [100 Cal.Rptr. 281, 493 P.2d 1145].) He is instead—and in the law’s express terms—deemed to have consented to the test itself3
The reasonableness of the “implied consent” fiction (see Serenko v. Bright (1968) 263 Cal.App.2d 682, 690 [70 Cal.Rptr. 1]) necessarily rests upon the premise that the motorist is deemed to have consented to a test which will be lawfully conducted. It is utterly ««reasonable to extend the fiction to the point that he is deemed to have consented to a test which will be carried out in violation of duly adopted regulations which are *573designed “to insure” its accuracy. (See Health & Saf. Code, § 436.50; 56 Ops. Cal. Atty. Gen. 38, supra, at p. 39.) In sum, I believe that his “implied consent” to a test must be treated as conditioned upon compliance with regulations which bear the color of law and which control the testing; that, failing such compliance, the consent is inoperative (see State v. Wallin, supra, 195 N.W.2d 95 at p. 98); and that the consequences may vitiate enforcement of the implied consent law itself.
In the nonconsensual situation, moreover, a blood specimen may constitutionally be taken by force only “under stringently limited conditions” (Schmerber v. California, supra, 384 U.S. 757 at pp. 771-772 [16 L.Ed.2d 908 at p. 920]) which guarantee that this is done “in a medically approved manner.” (People v. Superior Court (Hawkins), supra, 6 Cal.3d 757 at p. 761.) In the situation before us, the Legislature has brought about the promulgation of regulations which guarantee that a breath specimen taken will be tested in a scientifically “approved manner.” I perceive no substantial or reasonable difference between criminal convictions based upon evidence illegally obtained and evidence illegally processed (at the hands of the government in either instance). This court’s condonation of noncompliance with the testing regulations may accordingly raise constitutional problems which do not now exist.
Finally, a fundamental purpose of the rule excluding evidence illegally obtained is to exact obedience to law from those who enforce it. (People v. Cahan (1955) 44 Cal.2d 434, 445-450 [282 P.2d 905, 50 A.L.R.2d 513] [constitutional violation]. See Cave v. Superior Court (1968) 267 Cal.App.2d 517, 522 [73 Cal.Rptr. 167] [statutory violation]; Note, supra, 1 Loyola L. A. L.Rev. 201 at pp. 203-2Ó4.) For this salutary purpose, I cannot distinguish between a scofflaw in a forensic chemical laboratory and one who wears a badge on the street. I would exclude evidence produced, in violation of law, by either.
There are substantial indications in this record that the jury’s verdicts were based upon the statutory presumption of intoxication arising from a threshold blood-alcohol content (Veh. Code, § 23126, subd. (a)(3) and, in turn, upon the breath-test results which were reached in violation of regulation 1221.4. I therefore find prejudice as well as error, and would reverse the judgment of conviction accordingly.
Appellants’ petition for a hearing by the Supreme Court was denied August 26, 1976. Tobriner, J., Mosk, J., and Sullivan, J., were of the opinion that the petition should be granted.
Dnly the silence of the statute is material in this respect; the parallel silence of the regulations is both understandable and irrelevant. It is not within the authority of the Department of Health, adopting the regulations in compliance with the statute, to pass judgment upon the admissibility of evidence obtained in violation of the regulations.
I place no significance in the facts, recited by the majority, that “the Legislature rejected an express limitation on admissibility in Assembly Bill No. 789, as amended in the Senate on July 1, 1969,” and that the limitation was “stricken from the bill in its final form.” Assembly Bill No. 789 was the 1969 enactment which produced Health and Safety Code section 436.52 and the full chapter in which it appears. The “express limitation on admissibility” was included in the measure by the Senate amendment of July 1, the Assembly refused concurrence, and the “final form” of the bill emerged from the free conference process. We cannot derive its legislative purpose “from actions of one house of the Legislature which were rejected by the other house. Instead, we must look to the compromise language concurred in by both Senate and Assembly.” (Mooney v. Pickett (1971) 4 Cal.3d 669, 678 [94 Cal.Rptr. 279,483 P.2d 1231].)
The pertinent provision of the implied consent law, quoted in part by the majority, states: “Any person who drives a motor vehicle upon a highway shall be deemed to have given- his consent to a chemical test of his blood, breath or urine for the purpose of determining the alcoholic content of his blood. . . .” (Veh. Code, § 13353, subd. (a) [italics added].)