Sell argues further that the department guidelines which were read into the record did not apply to the Intoxilyzer 5000, and thus could not be evidence that approved procedures were followed. This argument fails as well. Even though it does not require chemicals, the intoxilyzer is a chemical test under IC 9-11-1-3, because it is "an analysis of a person's blood, breath, urine, or other bodily substance for the determination of the presence of alcohol, a controlled substance, or a drug." Department of toxicology regulations generally applicable to chemical tests encompassed the intoxilyzer test, Husk v. State (1985), Ind. App., 476 N.E.2d 149, 150-51, and evidence of them satisfied the foundational requirement of proof that approved test procedures were used. The trial court did not err in admitting Sell's breath test results into evidence. IV. Sufficiency of the Evidence
Oliver, 570 F.2d 397, 400 (1st Cir. 1978) (holding that "judgment of acquittal should be granted after the government's opening statement only when the statement 'clearly and affirmatively' shows that the charge against the defendant cannot be sustained under any view of the evidence consistent with the statement") (citation omitted). Our holding in this case is supported by decisions of several state courts that have upheld convictions based on statutes similar to D.C Code § 40-716(b)(1) and based on facts similar to those presented here. See, e.g., Hughes v. State, 17 Ark. App. 34, 702 S.W.2d 817, 819 (Ct. 1986) (admission by defendant that he was driver, plus officers' testimony and breathalyzer test results, was sufficient to support jury guilty verdict); Mason v. State, 177 Ga. App. 184, 338 S.E.2d 706, 707 (Ga.Ct.App. 1985) (officer's testimony that defendant admitted being the driver and results of breath test were sufficient to find defendant guilty beyond a reasonable doubt); Husk v. State, 476 N.E.2d 149, 151 (Ind.Ct.App. 1985) (admission by defendant that he was driver, combined with breath test and testimony about alcohol odor and dexterity tests, was sufficient to support conviction of driving while intoxicated); State v. Edens, 465 So.2d 954, 956 (La.Ct.App. 1985) (after driver abandoned his van and was discovered in another vehicle, admission that he was driver of van was sufficient to sustain operating a motor vehicle charge); State v. Cook, 711 S.W.2d 208, 209 (Mo.Ct.App. 1986) (corroborating circumstances, which correspond with the extrajudicial admission, may be considered in determining whether corpus delicti is proven); Wilson v. State, 688 S.W.2d 212, 213 (Tex.Ct.App. 1985) (appellant's admission to officer that he was operating the vehicle, and testimony from other witnesses at scene, was sufficient to establish that appellant was the driver). See also State v. Hughes, 355 N.W.2d 500, 502 (Minn.Ct.App. 1984) (circumstantial evidence that injured motorcyclist was driver was sufficient to sustain
Other jurisdictions addressing this precise issue have uniformly held that infrared spectrography constitutes a "chemical test" or "chemical analysis." SeeCurry v. State, 522 So.2d 887 (Fla.Ct.App. 1988); Commonwealth v. Smythe, 23 Mass. App. Ct. 348, 502 N.E.2d 162 (1987); State v.Nichols, 110 Idaho 823, 718 P.2d 1261 (1986); Fisher v.State, 177 Ga. App. 465, 339 S.E.2d 744 (Ct.App. 1986); State v. Richards, 378 N.W.2d 259 (S.D. 1985); Collier v.Schwendiman, 709 P.2d 357 (Utah 1985); Dollar v. State, 287 Ark. 153, 697 S.W.2d 93 (1985); Husk v. State, 476 N.E.2d 149 (Ind.Ct.App. 1985); Gandara v. State, 661 S.W.2d 749 (Tex.Ct.App. 1983); McConnell v. Commonwealth, 655 S.W.2d 43 (Ky.Ct.App. 1983); People v. Jones, 118 Misc.2d 687, 461 N.Y.S.2d 962 (1983); City of Dayton v. Schenck, 63 Ohio Misc. 14, 409 N.E.2d 284 (1980); State v. Moore, 307 A.2d 548 (Del. Super. 1973). While not bound by these decisions, we find them to be persuasive. As the Jones court reasoned: [T]o adopt the defendant's position [that only tests using chemicals to analyze breath are "chemical tests" within the statute] would be to bind inflexibly the administration of justice to the level of technology extant at the time of the enactment of the statute while technological advances thereafter would be unavailable to law enforcement officials if they did not fall within the terminology of a dated statute. If such a result is not required, it ought not to be adopted.
(emphasis in original)Accord, State v. Moore, 307 A.2d 548 (Del.Super. 1973); Husk v. State, 476 N.E.2d 149 (Ind. App. 1st Dist. 1985); McConnell v. Commonwealth, 655 S.W.2d 43 (Ky.Ct.App. 1983); State v. Dorsey, 58 Or. App. 521, 648 P.2d 1304 (1982). Accordingly, we hold that because the intoxilyzer determines blood alcohol content by measuring the alcohol content of a person's breath, it accomplishes a chemical analysis pursuant to SDCL 32-23-7.
In every other jurisdiction in which the issue has been raised, Intoxilyzer 5000 machines or similar devices have been determined to perform "chemical" analyses. See Dollar v. State, 287 Ark. 153 (1985); Husk v. State, 476 N.E.2d 149 (Ind. Ct. App. 1985). The Legislature would not have intended to limit the authorization it was providing for the important public purpose of facilitating reliable proof in drunk driving prosecutions to the technology which happened to be available when the original breath-test legislation was passed in 1961.
In the light of our standard of review, Collins's argument of insufficiency of the evidence borders upon the absurd. In Husk v. State (1985), Ind. App., 476 N.E.2d 149, evidence that there was a moderate odor of alcohol on the defendant's breath, that he was unable to complete dexterity tests, that his blood alcohol level was .11%, and that he admitted drinking was held sufficient to sustain a conviction for driving while intoxicated. Evidence a defendant seemed incoherent, was glassy-eyed, slurred his speech, smelled of alcohol, and failed field tests for sobriety was sufficient to sustain a conviction for driving while intoxicated.