Case Details: STATE OF HAWAII Plaintiff-Appellee vs. WAYNE TARO TENGAN Defendant-Appellant AND STATE OF HAWAII Plaintiff-Appellee v. GLENN ICHIRO AKITA Defendant-Appellant

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STATE OF HAWAII Plaintiff-Appellee
vs.
WAYNE TARO TENGAN Defendant-Appellant AND STATE OF HAWAII Plaintiff-Appellee v. GLENN ICHIRO AKITA Defendant-Appellant

Case:

Nos. 9151 9311

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Location:

Supreme Court of Hawaii

Date:

November 20, 1984

Headnotes:

STATUTES -- construction and operation -- general rules of construction -- construction with reference to other statutes -- in general.
Statutory language must be read in the context of the entire statute and construed in a manner consistent with the purposes of the statutes. ADMINISTRATIVE LAW -- powers and proceedings of administrative agencies officers and agents -- rules and regulations -- nature and scope.
Each agency statement of general or particular applicability and future effect that implements interprets or prescribes law or policy is a rule within the meaning of HRS SEC. 91-1(4) and the agency issuing the statement is bound by the procedural requirements of HRS SEC. 91-3. ADMINISTRATIVE LAW -- powers and proceedings of administrative agencies officers and agents -- rules and regulations -- nature and scope -- matters subject.
Where a public administrator set no policy and exercised no discretion with respect to instruments used by law enforcement agencies in chemical tests to determine blood alcohol concentration and merely coordinated State and federal efforts to maintain accuracy in testing he was not engaged in rule making. CONSTITUTIONAL LAW -- distribution of governmental powers and functions -- legislative powers and delegation thereof -- delegation of powers -- in general.
State legislation adopting by reference future legislation rules or regulations or amendments thereof enacted adopted or promulgated by another sovereign entity constitutes an unlawful delegation of legislative power.

Attorneys:

Gregory K. Tanaka Deputy Public Defender for Appellant Tengan.
Lynn L. Hodgson (Arthur E. Ross on the brief) Deputy Prosecuting Counsels for Appellee State of Hawaii.
Charles S. Gerdes on the briefs for Appellant Akita.
Lynn L. Hodgson Deputy Prosecuting Counsel on the brief for Appellee State of Hawaii.

Court:

Lum C.J. Nakamura Padgett Hayashi and Wakatsuki JJ. Opinion of Court by Nakamura J.

Author:

The Hon. Justice Nakamura

A State agency must follow the Administrative Procedure Act Hawaii Revised Statutes (HRS) Chapter 91 when it acts in a rulemaking capacity. Town v. Land Use Commission 55 Haw. 538 545 524 P.2d 84 89 reh. denied 55 Haw. 677 (1974). In these appeals Defendants Wayne Taro Tengan and Glenn Ichiro Akita challenge the use of the Intoxilyzer 4011AS (the Intoxilyzer) a breath-testing device to measure the concentration of alcohol in the blood of suspected drunken drivers on the ground that its use has not been authorized pursuant to a rule adopted in conformity with the Act. Tengan also questions the test results which were admitted as evidence in his case because "the breath test was not conducted by qualified personnel using the proper procedures specified under Hawaii law" and Akita also claims the Director of Transportation improperly delegated part of his authority to a federal agency. Finding no merit in the defendants' contentions we affirm their convictions of violations of HRS SEC. 291-4. *fn1

The defendants were stopped by officers of the Honolulu Police Department on suspicion of driving while under the influence of intoxicating liquor in unrelated incidents in 1982 and 1983. Each was arrested and transported to the police station after a roadside sobriety test yielded further evidence of his drunkenness. Apprised that drunk driving suspects who refuse to submit to either a breath or blood test to determine the alcoholic content of their blood are liable to have their driving privileges revoked under the "implied consent" law *fn2 each chose to undergo a breath test. The testing instrument used by the police to verify the concentration of alcohol in the blood of both was the Intoxilyzer. In each case the blood alcohol concentration registered .18% by weight of alcohol substantially higher than the .10% which then served as presumptive evidence of intoxication under HRS SEC. 291-5. *fn3

Prior to trial in the District Court of the First Circuit Tengan moved to exclude "all evidence obtained by the State in connection with the blood alcohol content breath test alleging the use of the Intoxilyzer as a breath-testing device had not been authorized by a properly adopted rule. He also urged Court to suppress the evidence on the ground that the pertinent test was conducted by an unqualified person. The district court, however, denied the motion and convicted Tengan of driving under the influence of intoxicating liquor. Akita likewise averred the use of the Intoxilyzer to procure proof of drunkenness in his case had not been approved by the Director of Transportation pursuant to a duly adopted rule and further claimed the director had improperly re-delegated his duty in this regard to a federal agency. He sought a dismissal of the charge rather than an order suppressing the evidence. But the district court also rejected his claims of infirmity relating to the approval of the testing device and adjudged him guilty of a violation of HRS SEC. 291-4.

On appeal the defendants essentially reiterate what was urged upon the district court. Our consideration of the issues posed for decision begins as it must with the relevant statutory scheme.

II.

The genesis of the State's efforts to deter drinkers from driving is traceable to a modest beginning in 1949 with the enactment of S.L.H. 1949 c. 283. Troubled by the prevalence of accidents and deaths involving persons driving under the influence of liquor and noting the lack of a "Territorial statute relating to this subject the Territorial legislature enact[ed] into law provisions making it a misdemeanor to operate vehicles while under the influence of intoxicating liquor or of drugs." Hse. Stand. Comm. Rep. No. 629 in 1949 House Journal at 1652. *fn4 Concomitantly it "establish[ed] certain [evidentiary] presumptions [relating to a person's intoxicated state] based upon the amount of alcohol in a person's blood." Id. Though substantially modified since the basic proscription of drunk driving and the presumptions enacted by the Territorial legislature remain as part of the statutory scheme to curb drunk drivers. See HRS SEC.(S) 291-4 and 291-5; see also notes 1 and 2 supra.

"Implied consent" was added to this scheme in 1967 when the Hawaii Highway Safety Act now codified as HRS Chapter 286 was passed to comply with a congressional mandate in the Highway Safety Act of 1966 Pub. L. 89-564 SEC. 402(a) 80 Stat. 731 731 (1966) for states to adopt federally approved highway safety programs. See S.L.H. 1967 c. 214 SEC. 2 and Sen. Stand. Comm. Rep. No. 234 in 1967 Senate Journal at 952. Act 214 provided in part that one operating a motor vehicle on the public highways of the State would be deemed to have consented to being tested to determine the amount of alcohol in his blood. *fn5 It further provided a test could be administered only after a lawful arrest and the suspected drunk driver was informed of the consequences of refusal which included a possible revocation of driving privileges. *fn6 Though modified the essence of these provisions is retained in the calculus of laws dealing with the menacing presence of the intoxicated driver on the highways of the State see HRS SEC.(S) 286-151 and 286-155 and "implied consent" to testing remains the linchpin of the program to keep him off the highways.

The responsibility of maintaining "scientific and technical control of chemical testing for blood alcohol" subsequently became that of the Department of Health. See S.L.H. 1973 c. 139 and Sen. Stand. Comm. Rep. No. 692 in 1973 Senate Journal at 924. The department was assigned the task of "establish[ing] and administer[ing] a statewide program relating to chemical testing of blood alcohol concentrations for the purposes of chapters 286 Part VII 291 and 291C with the consultation of the state highway safety coordinator." *fn7 S.L.H. 1973 c. 139. It was directed to establish appropriate procedures for specifying:

(1) The qualifications of personnel who administer chemical tests used to determine blood-alcohol concentrations; (2) The procedures for specimen selection collection handling and analysis; and

(3) The manner of reporting and tabulation of the results.

Id. The director of the department was further empowered to adopt the necessary rules and regulations pursuant to HRS Chapter 91 to implement these provisions. Id.

In conformity with the directives of Act 139 now codified as HRS SEC. 321-161 the Director of Health has promulgated comprehensive rules governing the chemical testing of blood breath and other bodily substances in accord with HRS Chapter 91. *fn8 Initially the rules were compiled in Chapter 47 of the Public Health Regulations. But Chapter 47 has since been repealed and the applicable rules are now found in Title 11 Chapter 111 [of the State's] Administrative Rules.

Thus the history of the State's efforts to curb drunk driving has been one of amendments and accretions to the simply worded statutory provisions enacted in 1949. And while the primary duty of enforcing HRS SEC. 291-4 has always rested with the police the responsibility of implementing the expanded State program is now shared among several state and county agencies taking direction from several chapters of the Hawaii Revised Statutes as well as from duly adopted rules and regulations.

III.

The focus of the defendants' challenge of the use of the Intoxilyzer by the police to obtain evidence of intoxication is the language of HRS SEC. 286-151 stating that anyone "who operates a motor vehicle on the public highways of the State shall be deemed to have given consent . . . to a test approved by the director of transportation [to determine] the alcoholic content of the person's blood." (Emphasis supplied). They assert the director was obliged thereunder to approve the testing instrument in accord with the rulemaking provisions of the Administrative Procedure Act. Since he has not done so they maintain the evidence of intoxication obtained through the use of the Intoxilyzer was fatally tainted.

Reading the section in isolation the defendants would have us rule a "test" within the meaning of SEC. 286-151 encompasses a "testing device" and its approval by the Director of Transportation is subject to the strictures of HRS Chapter 91. "But a statutory provision seldom may be read in isolation State v. Raitz, 63 Haw. 64, 71, 621 P.2d 352, 358 (1980); for [s]tatutory language must be read in the context of the entire statute and construed in a manner consistent with the purposes of the statutes." Pacific Insurance Co. v. Oregon Automobile Insurance Co. 53 Haw. 208 212 490 P.2d 899 902 (1971) (citations omitted); see also State v. Kaneakua 61 Haw. 136 140 597 P.2d 590 592 (1979). And when we read "test approved by the director of transportation" in historical context with the purposes of the relevant statutes in mind we can only conclude the approval by the Director of Transportation of the use of the Intoxilyzer in chemical testing for blood alcohol was not subject to the rule-making procedures of the Administrative Procedure Act.

This is not to say the Act does not apply to the adoption of testing procedures for detecting alcohol in the blood of drunk driving suspects; nor do we mean to suggest an agency is free to approve a testing instrument at its whim or fancy. "[E]ach agency statement of general or particular applicability and future effect that implements interprets or prescribes law or policy" is a "rule" within the meaning of HRS SEC. 91-1(4) and the agency issuing the statement is bound by the procedural requisites of HRS SEC. 91-3.

We entertain no doubt that when an agency prescribes testing procedures to be employed in determining blood alcohol concentration it is acting in a rule-making capacity. But we think the primary responsibility for implementing interpreting or prescribing law or policy in the area of our present concern including the prescription of procedures and standards to ensure accurate testing results has been delegated to an agency other than the Department of Transportation. This conclusion is inescapable when the relevant statutory provisions are viewed in perspective and construed in a manner consistent with their purposes.

As we have seen consent implied from the operation of a motor vehicle to "a test approved by the highway safety coordinator (director of transportation)" has been an integral part of the legislative program to discourage drinkers from driving since 1967. See S.L.H. 1967 c. 214 SEC. 2. *fn9 Yet the task of exercising scientific and technical control over chemical testing for blood alcohol was not expressly delegated to an agency until 1973. See S.L.H. 1973 c. 139. Finding an absence of actual controls despite the presence of statutory language that could have been read as a grant of authority to the highway safety coordinator the legislature then "designate[d] the Department of Health as the statewide administrator for the scientific and technical control of chemical testing for blood alcohol." Sen. Stand. Comm. Rep. No. 692 supra. *fn10

Act 139 as we observed called for the establishment and administration of a statewide chemical testing program to meet the needs engendered by highway safety legislation and the Director of Health was vested with authority to set the necessary procedures and standards by rules and regulations adopted pursuant to HRS Chapter 91. See S.L.H. 1973 c. 139. The comprehensive rules now compiled in Title 11 Chapter 111 of the State's Administrative Rules clearly fulfill the mandate for the establishment of a statewide program under the aegis of the Director of Health as Chapter 47 of the Public Health Regulations did prior to its repeal.

The duly adopted rules provide for the approval of all breath testing instruments by the Director of Health *fn11 and impose a duty on the Department of Health to evaluate instruments at the request of manufacturers or other agencies. *fn12 The performance standards for the instruments are also specified therein. *fn13 Chapter 47 of the Public Health Regulations which were superseded by Title 11 Chapter 111 of the Administrative Rules contained provisions of similar import. Under the circumstances we can only conclude the demands of the rule-making provisions of HRS Chapter 91 relative to chemical testing for blood alcohol under the State's highway safety program have been satisfied. And the record discloses the Director of Health approved the use of the Intoxilyzer in accord with the requirements of Chapter 47 and informed the Director of Transportation of the approval on December 16 1980. *fn14

This information was communicated in turn to the Chief of the Honolulu Police Department by the Director of Transportation his letter stating

[i]n accordance with the Highway Safety Coordinator of the State of Hawaii's "An Agency Statement Concerning the Testing of Blood and Breath Samples to Determine the Alcoholic Content Thereof" Part II A and C the enclosed Department of Health statement of approval of the CMI Intoxilyzer breath alcohol testing device is provided for your records.

Letter from Ryokichi Higashionna to Francis Keala (Jan. 23 1981). The reference to an agency statement was to an earlier document issued by the Highway Safety Coordinator which in relevant part provided:

A. THE TEST APPARATUS

The apparatus to be used in the approved test of breath samples to determine the alcoholic content of the blood of a person tested shall be one which qualifies for the National Highway Traffic Safety Administration Qualified Products List of Evidential Breath Testers for Alcohol Content under the Federal Standard for Devices to Measure Breath Alcohol (38 F. R. 30459 November 5 1973 or any subsequent revision thereof).

Hawaii Highway Safety Coordinator An Agency Statement Concerning the Testing of Blood and Breath Samples to Determine the Alcoholic Content Thereof pt. II(A) (1976). The letter of January 23 1981 thus served as notice to the Chief of Police that the use of the Intoxilyzer had been approved by the Director of Health and it met the Federal Standard for Devices to Measure Breath Alcohol. In effect the letter constituted the Director of Transportation's "approval" of a breath test following the testing procedures outlined in Title 11 Chapter 111 and employing an instrument approved for use by the Director of Health which was also on the National Highway Traffic Safety Administration's Qualified Products List. *fn15

The Director of Transportation's approval of the use of the Intoxilyzer could hardly be deemed rule making. For he set no policy and exercised no discretion with respect to the use of testing instruments; he merely coordinated State and federal efforts to maintain accuracy in chemical testing for blood alcohol. We would characterize his approval of tests pursuant to HRS SEC. 286-151 as a ministerial rather than a quasi-legislative function. The implementation interpretation or prescription of law or policy in the particular area is clearly the province of the Director of Health and he has promulgated the rules governing the use of chemical testing instruments in the enforcement of highway safety laws. *fn16

IV.

Turning to the remaining issues raised by the defendants we first address Akita's contention that an impermissible delegation of legislative authority occurred when the Director of Transportation issued "An Agency Statement Concerning the Testing of Blood and Breath Samples to Determine the Alcoholic Content Thereof" in 1976. *fn17 The statement in question declared that the apparatus used in testing breath samples had to be on the Qualified Products List of the National Highway Traffic Safety Administration "or any subsequent revision thereof." This reference to subsequent revisions Akita urges resulted in the adoption by the State of future changes in federal law or policy. We find no merit in the proposition.

To be sure the Intoxilyzer was not on the Qualified Products List in 1976; it was deemed fit for use in breath testing by the federal agency in 1979. We are mindful too that "state legislation which adopts by reference future legislation rules or regulations or amendments thereof which are enacted adopted or promulgated by another sovereign entity [would constitute] an unlawful delegation of legislative power." People v. Urban 45 Mich. App. 255 262 206 N.W.2d 511 516 (1973) (citations omitted) (emphasis in original). But here we earlier concluded the legislature did not contemplate that the Director of Transportation would be acting in a quasi-legislative capacity where chemical testing for blood alcohol was concerned. Hence he could not have adopted federal legislation rules or regulations or any subsequent revision thereof.

The last issue posed for decision is whether the evidence of Tengan's intoxication obtained through the use of the Intoxilyzer was admissible at trial. The test in question Tengan would have us hold was not conducted by qualified personnel using the proper procedures specified under Hawaii law. He further asserts the Honolulu Police Department's maintenance of the particular testing instrument was not up to the standards set by the Director of Health. *fn18 These technical shortcomings he claims rendered the test unreliable and the results inadmissible.

We have reviewed the testimony of the operator of the instrument and that of her operator/supervisor and weighed the uncontroverted evidence relating to her qualifications the procedures utilized by her and the department's maintenance of its Intoxilyzer against the qualifications procedures and standards prescribed by the Director of Health. We find no basis in the record for holding the test administered to Tengan was deficient in any respect.

The judgments of the District Court of the First Circuit are affirmed.

Notes:

*fn1 HRS SEC. 291-4 (Supp. 1982) read as follows when defendants were charged thereunder:

Driving under influence of intoxicating liquor. (a) Whoever operates or assumes actual physical control of the operation of any vehicle while under the influence of intoxicating liquor shall be sentenced as follows without possibility of probation or suspension of sentence:

(1) For a first offense or any offense not preceded within a four-year period by a conviction under this section by:

(A) A fourteen-hour minimum alcohol abuse rehabilitation program including education and Counseling or other comparable program deemed appropriate by Court; and

(B) Any two of the following:

(i) Seventy-two hours of community service work;

(ii) Thirty-day suspension of license;

(iii) Forty-eight hours of imprisonment;

(2) For an offense which occurs within four years of a prior conviction under this section by any two of the following:

(A) A fine of not less than $250 but not more than $1 000 or not less than seventy-two hours but not more than one hundred-fifty hours of community service work;

(B) Ninety-day suspension of license;

(3) For an offense which occurs within four years of two prior convictions under this section by:

(A) A fine of not less than $500 but not more than $1 000;

(B) Revocation of license for a period not less than one year but not more than five years; and

(b) Notwithstanding any other law to the contrary whenever a court revokes a person's driver's license pursuant to the provisions of this section the examiner of drivers shall not grant to such person an application for a new driver's license for such period as specified by Court.

(c) As used in this section the terms driver, driver's license, examiner of drivers, and "vehicle" shall have the same meanings as provided in section 286-2.

*fn2 HRS SEC. 286-151 (Supp. 1983) provides that "[a]ny person who operates a motor vehicle on the public highways of the State shall be deemed to have given consent . . . to a test approved by the director of transportation of the person's breath or blood for the purpose of determining the alcoholic content of the person's blood."

A refusal to submit to such testing can result in a revocation of the person's privilege of operating a motor vehicle. See HRS SEC. 286-155.

*fn3 At the time of defendants' arrests HRS SEC. 291-5 (1976) read:

Evidence of intoxication. In any criminal prosecution for a violation of section 291-4 the amount of alcohol in the defendant's blood within three hours after the time of the alleged violation as shown by chemical analysis or other approved analytical techniques of the defendant's blood or breath shall be competent evidence that the defendant was under the influence of intoxicating liquor at the time of the alleged violation and shall give rise to the following presumptions:

(1) If there was five-hundredths per cent or less by weight of alcohol in the defendant's blood it shall be presumed that the defendant was not under the influence of intoxicating liquor at the time of the alleged violation.

(2) If there was in excess of five-hundredths per cent but less than ten-hundredths per cent by weight of alcohol in the defendant's blood such fact may be considered with other competent evidence in determining whether or not the defendant was at the time of the alleged violation under the influence of intoxicating liquor but shall not of itself give rise to any presumption.

(3) If there was ten-hundredths per cent or more by weight of alcohol in the defendant's blood it shall be presumed that the defendant was under the influence of intoxicating liquor at the time of the alleged violation.

The foregoing provisions of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of intoxicating liquor at the time of the alleged violation.

Substantial amendments to SEC. 291-5 were enacted in 1983. The statute now makes it unlawful for any person with .10% or more by weight of alcohol to operate a vehicle. See S.L.H. 1983 vol. 1 c. 117.

*fn4 Hse. Stand. Comm. Rep. No. 629 in pertinent part stated:

The purpose of this bill is to enact into law provisions making it a misdemeanor to operate vehicles while under the influence of intoxicating liquor or of drugs and to establish certain presumptions based upon the amount of alcohol in a person's blood.

Th[e]re is at present no Territorial statute relating to this subject although there are ordinances under which such drivers are prosecuted. In view of the figures relating to accidents and deaths involving persons driving under the influence of liquor it is desirable to have a uniform Territorial law in force.

*fn5 Act 214 in relevant part read:

Sec.-160. Implied consent of driver of motor vehicle to submit to testing to determine alcoholic content of blood. Any person who operates a motor vehicle upon the public highways of the State shall be deemed to have given his consent subject to this part to a test approved by the highway safety coordinator of his breath or blood for the purpose of determining the alcoholic content of his blood; such person shall have the option to take a test of his breath or blood or both. The test or tests shall be administered at the request of a police officer having reasonable grounds to believe the person driving or in actual physical control of a motor vehicle upon the public highways is under the influence of intoxicating liquor only after (1) a lawful arrest and (2) the police officer has informed the person of the sanctions of section -164.

*fn6 Act 214 in relevant part read:

Sec. -164. Revocation of privilege to drive motor vehicle upon refusal to submit to testing. If a person under arrest refuses to submit to a test of his breath or blood none shall be given but the arresting officer shall as soon as practicable submit an affidavit to a magistrate of the district in which the arrest was made stating that at the time of the arrest he had reasonable grounds to believe the arrested person had either been driving or was in actual physical control of a motor vehicle upon the public highways while under the influence of intoxicating liquor that the arrested person had been informed of the sanctions of this section and that the person had refused to submit to a test of his breath or blood.

Upon receipt of the affidavit the magistrate shall hold a hearing as provided in section -165 and shall determine whether the statements contained in the affidavit are true and correct. If the magistrate finds the statements contained in the affidavit are true he shall revoke the arrested person's license permit or any nonresident operating privilege for a period of six months.

If the arrested person is a resident without a license or permit to operate a motor vehicle in the State the magistrate shall send notice of the results of the hearing to the examiners of chauffeurs of all counties. The examiners of chauffeurs shall deny the person the issuance of a license or permit for a period of six months.

The penalties provided by this section are additional penalties and not substitutes for any other penalties provided by law.

*fn7 The Director of Transportation has assumed the functions of the state highway safety coordinator. See S.L.H. 1977 1st Spec. Sess. c. 20 SEC.12.

*fn8 The record indicates rules entitled Department of Health Title 11 Chapter 111 Testing of Blood Breath and Other Bodily Substances for Alcohol Concentration (Administrative Rules) were adopted by the Director of Health on October 30 1981 and approved by the Governor on November 15 1981.

The defendants do not question the validity of these rules. In fact Tengan's claim of procedural infirmity rests in part on an allegation that the operator of the testing device was not a qualified operator under the rules promulgated by the Director of Health.

*fn9 When S.L.H. 1967 c. 214 was passed the highway safety coordinator was the State officer with ostensible authority to approve tests. The coordinator's functions were assumed by the Director of Transportation in 1977. See supra note 7.

*fn10 Senate Standing Committee Report No. 692 the Senate committee report accompanying H.B. No. 157 which was enacted into law as S.L.H. 1973 c. 139 stated in part:

The purpose of this bill is to designate the Department of Health as the statewide administrator for the scientific and technical control of chemical testing for blood alcohol.

So designating a State agency has been encouraged by the State Department of Transporation as a result of recommendations set forth by the National Highway Traffic Safety Administration. Although it is noted that breath and blood tests are currently being administered by the County Police Departments no such controls are prevalent with regard to chemical testing for blood alcohol.

The Department of Health has offered testimony that they stand ready to undertake this responsibility within it's [sic] existing resources.

*fn11 Section 11-111-2(a) of the Administrative Rules reads in part:

(a) All breath testing instruments and related accessories used for the determination of equivalent blood alcohol content from a person's breath sample shall be approved by the director of health . . . .

*fn12 Section 11-111-2(a)(8) and (9) of the Administrative Rules read:

(8) It shall be [the] responsibility of the manufacturer or the agency requesting the evaluation of a breath testing instrument for approval to provide the department with the instrument and related accessories; chemical reagents; detailed set of instructions pertaining to the operation calibration and maintenance; interpretation of results; and any other material needed for the evaluation; and shall provide the department with such technical consultation as is necessary during the evaluation.

(9) It shall be the responsibility of the department to evaluate the instruments as recommended in SEC. 11-111-2(a) (3) (4) and (5) of this subsection.

*fn13 Section 11-111-2(a)(4) and (5) of the Administrative Rules read:

(4) The instruments and their related accessories shall be capable of analyzing a suitable reference sample such as air equilibrated with a reference solution of known alcohol concentration at a known temperature within the range of one hundredths to thirty hundredths percent weight per volume (0.01% to 0.30% W/V) or higher known alcohol concentrations that are recommended by the breath testing instrument's manufacturer. The results of such analysis must agree with the reference sample value within the limits of plus or minus one hundredths percent weight per volume (+/- 0.01% W/V) or other such limits set by the director.

(5) The instruments and their related accessories shall be capable of analyzing an alcohol-free person which results in a concentration less than one hundredths percent weight per volume (0.01% W/V).

*fn14 The memorandum read:

In accordance with Public Health Regualtions [sic] Chapter 47 approval is granted for the use of the CMI Intoxilyzer (Model 4011AS) as a breath alcohol testing device by the four county police departments.

This device meets the requirements of the National Highway Traffic Administration's Standard for Devices to Measure Breath Alcohol (39 FR 30459) and is listed as a qualified product by that agency (44 FR 32781).

Memorandum from George Yuen Director of Health to Ryokichi Higashionna Director of Transportation (Dec. 16 1980). The reference to "Public Health Regulations Chapter 47 is to the regulations superseded by Chapter 111 of Title 11 and upon which the later regulations are substantially based. Neither Chapter 47 nor Title 11, Chapter 111 is challenged by Tengan or Akita.

*fn15 State and local governments using federal funds available under section 402(a) of the Highway Safety Act of 1966 to acquire evidential breath testing devices can only purchase equipment on the National Highway Traffic Safety Administration Qualified Product List. See 38 Fed. Reg. 30459-60 (1973).

*fn16 We also do not view the approval of the Intoxilyzer by the Director of Health as rule making. Approval here merely entailed the measurement of performance against set standards prescribed earlier in accord with the Administrative Procedure Act and the Director exercised no discretion and issued no policy statement when he approved the particular instrument.

*fn17 The document in question is the agency statement we discussed in the preceding part of this opinion.

*fn18 Ironically he relies on the rules promulgated by the Director of Health in claiming the test results were inadmissible.

The qualifications required of an operator of breath testing instruments are delineated at SEC. 11-111-4 of the Administrative Rules which reads in part:

Operator of breath testing instruments. An operator of breath testing instruments shall be responsible for the proper performance of analysis of breath samples proper record keeping and proper reporting of results.

(1) Any person employed by a county police department may qualify as an operator by:

(A) Having successfully completed training as specified in this section approved by the department; or

(B) On the effective date of this chapter have not less than one (1) year's experience in the operation of the approved breath testing instrument to be utilized; or

(C) Being able to exhibit through examination and demonstration or both to the department sufficient skill in the operation and interpretation of results of the approved testing instrument to be utilized.

The testing procedures to be utilized are also specified in SEC. 11-111-2. Some of the procedural safeguards the operator is expected to observe are:

(7) In addition to those recommended by the manufacturers [of the instrument] there shall be the following procedural safeguards:

(A) Continuing observation of the subject for a minimum of fifteen (15) minutes prior to collection of the breath sample during which period the subject shall not have ingested alcohol or vomitted [sic]. If the subject vomits wait fifteen (15) minutes before collecting the breath sample.

(B) The temperature of the instrument is stable.

(D) Analysis of a suitable reference sample of known alcohol concentration. The results of such analysis must agree with the reference sample value within the limits of plus or minus one hundredths percent weight per volume (+/- 0.01% W/V) or such limits as set by the director.

(E) The lot or value number of the reference sample used shall be noted.

The maintenance standards are set out at SEC. 11-111-2(b) which provides in part:

(b) Testing for accuracy maintenance and repair of all breath testing instruments and related accessories employed pursuant to this chapter shall comply with the following:

(1) It shall be the responsibility of the operator/supervisor to assure that testing for accuracy is done.

(2) Only methods recommended by the manufacturers or approved by the department for the testing for accuracy shall be employed.

(3) Testing for accuracy shall be done no less frequently than every thirty (30) days and after every maintenance and repair using a minimum of two (2) reference samples of known alcohol concentrations at a known temperature within the range of one hundredths to thirty hundredths percent weight per volume (0.01% to 0.30% W/V) or higher known alcohol concentrations that are recommended by the breath testing instrument's manufacturer. The results of such analysis must agree with the reference sample value within the limits of plus or minus one hundredths percent weight per volume (+/- 0.01% W/V) or such limits set by the director.