Opinion
[17 Ark.App. 37-A] SUPPLEMENTAL OPINION ON DENIAL OF REHEARING
MAYFIELD, Judge.
A petition for rehearing in this case calls our attention to certain factual errors in our original opinion; however, we find these errors do not change the result of our decision.
The record in this case shows that the type of instrument used to test appellant's breath was an Alco-Analyzer Gas Chromatograph, Model 1000. In our original opinion, 17 Ark.App. 34, 702 S.W.2d 817 (1986), we said Arkansas Department of Health, Regulations for Blood Alcohol Testing, at 26s&s28 (2nd revision 1984), "require that approved calibrating devices and standard solutions be used, but do not specify where they are to be obtained." Appellant's petition for rehearing states that we referred to the wrong pages. While it is true that we should have referred to page 29 instead of 28, we actually made an even greater error.
Although the case of Johnson v. State, 6 Ark.App. 78, 638 S.W.2d 686 (1982), cited in our original opinion, makes it clear that both trial and appellate courts may take judicial notice of the regulations of state boards and agencies, we took judicial notice of regulations which became effective on April 15, 1984, when the offense in this case occurred on November 19, 1983. The proper regulations at that time were those which became effective on April 28, 1970, as revised effective October 28, 1971. Those regulations, promulgated under authority of Section 2(c) of Act 106 of 1969, see Ark.Stat.Ann. § 75-1046(c) (Repl.1979), contained the following provisions:
PART E. CALIBRATION
AP-340 Breath Testing Instruments. Instruments designed to test direct breath samples shall be calibrated no less frequently than once each day the instrument is in operation by a Senior Operator or Operator Supervisor, using appropriate solutions of ethyl alcohol, and using methods and techniques for calibration recommended by the manufacturer of the calibration device as approved by the Department.
[17 Ark.App. 37-C] AP-341 Other Methods. Procedures other than direct breath tests shall be calibrated with known concentrations of ethyl alcohol at least once each day that tests are run. This calibration shall be performed by an Operator Supervisor, Laboratory Director or under a Laboratory Director's general supervision.
AP-342 Other Calibration Solutions. Gas Chromatograph calibration may be accomplished by addition of an appropriate internal standard.
Although we cited the wrong regulations in our original opinion, we do not think this affects the result of our decision. Neither set of regulations provides, as contended by appellant in his original brief, that the calibrating solution must be obtained from the health department. Now, in his petition for rehearing, the appellant complains that he was unable to find out whether the calibrating solution was "standard" since the officer who calibrated the machine did not know where the solution came from. However, there was evidence that the officer was trained and certified by the health department, that the sheriff's office purchased small containers labeled for use in mixing a .10% calibrating solution, that the proper amount of distilled water was mixed and heated to a certain temperature, and that this solution tested .09% on the machine. The officer said this established a proper test for use of the solution for the purpose of calibrating the machine. Substantial compliance with the health department regulations is all that is required. Sparrow v. State, 284 Ark. 396, 398, 683 S.W.2d 218 (1985). We think the test results were properly admitted into evidence.
The appellant's petition for rehearing also points out that this case was submitted to the jury only on the question of whether he was in physical control of a motor vehicle while his blood alcohol content was .10% or more. From the briefs and abstract, we understood appellant was convicted of driving while intoxicated. However, the Arkansas Supreme Court has recently held that Ark.Stat.Ann. § 75-2503 (Supp.1985) provides the same penalty for either conduct and that the "two conditions are simply different ways of proving a single violation." See Wilson v. State, 285 Ark. 257, 685 S.W.2d 811 (1985), and Yacono v. [17 Ark.App. 37-D] State, 285 Ark. 130, 685 S.W.2d 500 (1985). Thus, in either event, the conviction appealed from is supported by substantial evidence.
CORBIN and GLAZE, JJ., agree.