1(C), which requires that the method of analysis "... be made by a method approved by the Arkansas State Board of Health"; Otte v. State, 172 Neb. 110, 108 N.W.2d 737, 740 [6], construing then Section 39-727.02, requiring that "[t]ests to be considered valid ... shall have been performed according to methods approved by the Department of Health ..."; State v. Gallant, 108 N.H. 72, 227 A.2d 597, 599-600 [4, 5]; People v. McFarren, 28 Misc.2d 320, 222 N.Y.S.2d 828, 830 [1] [2]. See also State v. Fogle, 254 Or. 268, 459 P.2d 873, 876.
We note that in New York where the statute says mechanical tests for blood alcohol shall be given in accordance with regulations established by the police department, there can be no conviction without evidence of what those standards were and that the test was conducted accordingly. People v. McFarren, 28 Misc.2d 320, 222 N.Y.S.2d 828 [1, 2]. Statute Construed as a Whole.
If a conviction is to be had under a chemical test, it is not only necessary to establish the standards for the test but to further establish they have been complied with and that they satisfy recognized scientific and medical standards. ( People v. McFarren, 28 Misc.2d 320.) The results of a test of a blood sample taken from a motorist are inadmissible when the test is not shown to have been conducted under necessary scientific and medical standards to show proper identification of the sample.
If the general scheme and understanding of the members of the Depew police force are not rules and regulations, the test could not have been administered pursuant to rules and regulations. Absent rules and regulations, the result of the test is inadmissible as a matter of law and must be suppressed. ( People v. McFarren, 28 Misc.2d 320. See, also, People v. Fogerty, 18 N.Y.2d 664, and the implied affirmance opinion of Police Justice ROGER SCOTT in People v. Simmons, 52 Misc.2d 235.) More importantly, however, this court believes that, in any event, the rules or regulations referred to in section 1194 Veh. Traf. of the Vehicle and Traffic Law must be in writing.
Upon the failure of the People to prove the rules and regulations by valid evidence, the conviction, based in part upon the evidence of the chemical tests, must be reversed. ( People v. McFarren, 28 Misc.2d 320; People v. Maxwell, 18 Misc.2d 1004.)
In the Fogerty case, the Court of Appeals stated that police rules for the taking of blood tests are not the kind of rules which govern the conduct of and impose burdens on the People such as should be filed pursuant to section 8 of article IV of the State Constitution. In the Cull case the Court of Appeals stated that an order of the State Traffic Commission establishing a speed limit amounted to a rule or regulation which was required to be filed. It is noted that, although the Court of Appeals in the Fogerty case did not require the filing of the rules governing the tests, that decision did not dispense with, but actually affirmed the ruling in the case of People v. McFarren ( 28 Misc.2d 320), which required that, on a trial of a charge under section 1192 Veh. Traf. of the Vehicle and Traffic Law, there had to be established that there were rules and regulations in existence in the particular police department for the administration of chemical tests and it had to be further shown on the trial that such tests had been given in accordance with such rules and regulations and that they satisfied recognized scientific and medical standards. Although this court agrees with Judge VAN VOORHIS in his dissenting opinion in the Fogerty case, it is nevertheless bound by the ruling of the majority in that case.
The results of the criminal case are separate and distinct, and, often difficult of proof. ( People v. Brick, 32 Misc.2d 73; People v. McFarren, 28 Misc.2d 320; Matter of Finocchairo v. Kelly, supra.) The Commissioner must proceed under the mandates of the licensing statute.