State v. Norman, 030343136; A122051.

• Decision Date: 07 December 2005
• Docket Number: 030343136; A122051.
• Parties: STATE of Oregon, Respondent, v. Jonathan E. NORMAN, Appellant.
• Court: Oregon Supreme Court

125 P.3d 15

203 Or. App. 1

STATE of Oregon, Respondent, v. Jonathan E. NORMAN, Appellant.

030343136; A122051.

Court of Appeals of Oregon.

Argued and Submitted September 30, 2005.

Decided December 7, 2005.

Ernest G. Lannet, Deputy Public Defender, argued the cause for appellant. With him on the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services.

Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. On the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before EDMONDS, Presiding Judge, and LINDER and WOLLHEIM, Judges.

EDMONDS, P.J.

Defendant appeals a judgment of conviction for misdemeanor driving under the influence of intoxicants (DUII). ORS 813.010. On appeal, he assigns error to the admission into evidence of certifications of the accuracy of the Intoxilyzer machine that produced the test result also admitted into evidence. He argues that his confrontation rights under the state and federal constitutions were violated in light of recent Oregon Supreme Court holdings and the holding in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We affirm.

The underlying facts are not in dispute. Defendant was stopped on February 15, 2003, after two police officers saw him driving after midnight with only his parking lights on. When defendant did not react to signals to activate his headlights, the officers eventually stopped him. Although one officer used the overhead lights on his police car and activated its siren twice, and although there were several safe places to stop, defendant continued driving for approximately four blocks. After defendant was stopped, the officers observed indicia of alcohol consumption and asked him to perform field sobriety tests. Defendant agreed, and, based on his performance of those tests, the officers determined that defendant was under the influence of intoxicants and placed him under arrest. At the police station, defendant submitted to a breath test on an Intoxilyzer 5000 machine. The result indicated that defendant had a blood alcohol content (BAC) of 0.13 percent.

At trial in June 2003, the state offered into evidence two documents certifying that the breath test machine had been tested for accuracy on January 14, 2003 and March 31, 2003, and had been determined to comply with ORS 813.160 and OAR 257-030-0100.¹ Defendant objected to the admission of the exhibits, arguing, in part, that admission of the certifications, without establishing the unavailability of the technicians who prepared them or the persons who certified them as true and correct copies of the originals, violated his right to confront witnesses under the Oregon and United States constitutions. The trial court overruled the objection and admitted the certifications. Defendant was convicted, and, on appeal, he assigns error to the admission into evidence of the certifications.

In State v. Conway, 70 Or.App. 721, 690 P.2d 1128 (1984), rev. den., 298 Or. 704, 695 P.2d 1371 (1985), we considered and rejected arguments under both Article I, section 11, of the Oregon Constitution² and the Sixth Amendment to the United States Constitution that were identical to those made by defendant in this case. We observed that "[t]he traditional hearsay rule and the many concepts attending it, including the official records exception, came into the law long before the adoption of the federal and state constitutions" and concluded that the confrontation rights afforded by the constitutions do not apply to public records that were admissible to establish collateral facts at common law. Conway, 70 Or.App. at 724, 690 P.2d 1128. However, in defendant's view, Conway should be overruled as to Article I, section 11, in light of the more recent Supreme Court decisions in State v. Campbell, 299 Or. 633, 705 P.2d 694 (1985), and State v. Moore, 334 Or. 328, 49 P.3d 785 (2002). But in State v. William, 199 Or.App. 191, 193-97, 110 P.3d 1114, rev. den., 339 Or. 406, 122 P.3d 64 (2005), we adhered to our holding in Conway regarding Article I, section 11, in the face of an identical challenge. Accordingly, we reject defendant's Article I, section 11, argument for the reasons expressed in William.

Defendant also argues that admission of the certifications violates his right to confrontation under the Sixth Amendment to the United States Constitution.³ He posits that the "technicians' statements averring the certification of the Intoxilyzer machine constituted testimonial evidence," and that, because the technicians did not appear at trial and there was no opportunity to cross-examine them, the documents are inadmissible under Crawford.⁴ Defendant's position would require that our decision in Conway be overturned. The state responds that the Intoxilyzer certifications are not "testimony" for purposes of Crawford, but rather are nontestimonial documents that would have been admissible at common law before the adoption of the Sixth Amendment. The state concludes that, because the certifications are nontestimonial in nature, they are admissible under Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). We agree with the state's argument.

In Crawford, the police questioned the defendant's wife regarding the circumstances of a homicide. The wife was not available to testify at trial but her statements to the police were admitted as statements against penal interest. The United States Supreme Court held that the admission of those statements in the defendant's criminal trial violated his Sixth Amendment right to confront witnesses against him. In examining the history that preceded the adoption of the Sixth Amendment, the Court observed that "the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." Crawford, 541 U.S. at 50, 124 S.Ct. 1354. Reading the text of the Sixth Amendment in light of its history, the court concluded that the clause "reflects an especially acute concern with a specific type of out-of-court statement[,]" was testimonial evidence. Id. at 51, 124 S.Ct. 1354. Although the Court declined to adopt a particular test for what constitutes "testimonial evidence," it did conclude that ex parte testimony at a preliminary hearing as well as "[s]tatements taken by police officers in the course of interrogations" qualify. Id. at 52, 124 S.Ct. 1354. Applying the above standards, the Court concluded that the statements made by the defendant's wife in response to police questioning were testimonial in nature, thereby implicating the defendant's Sixth Amendment right to confront witnesses.

Under Crawford, the threshold question is whether an out-of-court statement is "testimonial." State v. Mack, 337 Or. 586, 101 P.3d 349 (2004). In Mack, the issue was whether the Confrontation Clause prohibited a Department of Human Services caseworker from testifying concerning statements that a three-year-old child had made to her during a police-directed interview. The court concluded that, because the caseworker was serving as a proxy for the police, the child's statements to her were testimonial in nature. The court observed that "[t]he primary focus in Crawford was on the method by which government officials elicited out-of-court statements for use in criminal trials, not on the declarant's intent or purpose in making the statement" while conceding that "there may be situations in which the declarant's purpose in making a statement may bear on whether the statement is testimonial." Id. at 594, 101 P.3d 349.

In our view, Crawford and Mack establish certain parameters for determining whether evidence is "testimonial in nature" under the Sixth Amendment, parameters that are not satisfied in this case. First, the certifications in this case do not resemble the classic kind of testimonial evidence at which the Confrontation Clause was aimed—ex parte examinations of witnesses intended to be used to convict a particular defendant of a crime. Rather, the certifications are evidence about the accuracy of a test result arrived at by a machine. They were created by state employees in the course of carrying out routine ministerial duties required by statute and administrative rule to certify the accuracy of test results of Intoxilyzer machines. The first certification occurred before defendant was arrested, and the second occurred 45 days after his arrest and four months before his trial in June 2003. Rather than being directed at evidence about the accuracy of a machine result, the Confrontation Clause is directed at the methodology of ex parte police or prosecutorial examinations of potential witnesses, those who make a solemn declaration or affirmation of fact to government officers for the purpose of establishing or proving a fact in issue in the case being prosecuted. The framers intended that, under the Sixth Amendment, the prior statements of a witness who did not appear at trial and was not available for cross-examination by the defendant, subject to certain exceptions, would not be admissible. Crawford, 541 U.S. at 54, 124 S.Ct. 1354. In that light, there is no resemblance between the historical examples that gave rise to the Confrontation Clause and the use of the certifications at issue in this case.

Second, the Crawford court emphasized the investigative and prosecutorial functions held by seventeenth and eighteenth-century English justices of the peace, observing that police officers and prosecutors perform a similar function today. Id. at 53, 124 S.Ct. 1354. It is the exercise of those kinds of functions that implicate the Sixth Amendment right to confront. But here, there is no evidence in the record that the technicians were functioning as the proxy of the police investigation concerning defendant, such as occurred in Mack. Rather, it...