Dеfendant appeals from a conviction for driving while his driver’s license was suspended. ORS 811.182(1). At trial, he raised the affirmative defense that, when he was arrested on that charge, he had never received notice of the suspension. ORS Sll.lSOCLXb).
Defendant was arrested for DUII on March 5, 2011. He failed the breath test and, as a consequence, his license was temporarily suspended. Before he left the police station, an officer filled out and signed multiple copies of an “Implied Consent Cоmbined Report — Notice of Suspension” form (“Notice of Suspension” form) stating, among other things, that defendant had failed the breath test; that his license would be suspended until July 3, 2011; and that “[y]ou have been given a copy of this form.” At the bottom of the form, the officer who administered the breath test, Hoesly, signed the following statement: “I affirm by my signature that the foregoing events occurred.” Hoesly kept one copy of the form. Whether he gave defendant a copy became an issue when defendant was stopped for a traffic infraction during the suspension period and arrested for driving while suspended. At trial on that charge, defendant did not deny that he had been driving during the period when his license was suspended; rather, he relied on ORS 811.180(l)(b), which provides an affirmative defense to driving while suspended if “[t]he defendant had not received notice of the defendant’s suspension.” According to defendant, Hoesly never gave him a copy of the Notice of Suspension. To disprove that defense, the state offered the copy of the signed form that Hoesly had retained. Hoesly, however, was not present at trial and therefore was not subject to cross-examination, nor had defеndant had the opportunity to cross-examine him before trial. Defendant objected to the admission of the form, relying on Crawford. In response, the prosecutor argued that Crawford, along with subsequent Oregon and federal cases, establish that a defendant’s right to confront the author of a document applies only if that document contains a statеment that is “testimonial” — and that these same cases establish that the statement at issue in the present case was not. The court accepted the state’s argument and admitted the evidence. Subsequently, in a MOJA, defendant raised the alternative argument that, even if the form was properly аdmitted, the state still failed to produce constitutionally sufficient evidence to defeat the affirmative defense. The court denied that motion. The jury found defendant guilty of misdemeanor driving while suspended, and the court sentenced him to a $500 fine. This appeal ensued.
In Crawford, involving a recording of a witnеss’s out-of-court testimony, the Court held that a testimonial hearsay statement was inadmissible unless the state established that, with certain exceptions not relevant to the issue in this case, the declarant was both (a) unavailable, and (b) that the defendant had the opportunity to cross-examine him or her.
The Oregon appellate courts have long struggled to decide whether the United States Supreme Court would regard certain documents as testimonial. In State v. Norman,
In deciding these cases, we relied on several characteristics of the various documents and the circumstances under which their use was challenged: whether the document at issue was a sworn affidavit, whether it was used to prove an element of the crime or violation at issue, whether it was provided in response to a request from law enforcement, and whether it was prepared in fulfillment of a statutory or regulatory duty as opposed to being prepared for litigation against a particular individual. In a thorough opinion affirming our Sixth Amendment decision in Copeland, the Supreme Court idеntified a variety of these factors, only some of which were present in the case:
“The Court in Melendez-Diaz further explained that the forensic certificates were made for the purpose of proving a fact at trial: (1) they were sworn affidavits, thus constituting formalized materials that contained ‘the preсise testimony the analysts would be expected to provide if called at trial,’ [Melendez-Diaz,557 US at 310 ]; (2) they were prepared in response to an investigative law enforcement request; and (3) under the relevant Massachusetts statute requiring production of the forensic certificates, the ‘sole purpоse’ of creating the certificates was to provide prima facie evidence in a criminal proceeding. Id. at 311.
«:f! ij:
“[T]he certificate of service at issue here is readily distinguishable from the forensic certificates held to be testimonial in Melendez-Diaz. First, the certificate of service was not prepared in response to a request made by law enfоrcement during the course of an investigation. In fact, the violation of the restraining order did not occur until well after service was completed. Further, unlike in Melendez-Diaz, the statutes that required production of the certificate of service in this case, * * *demonstrate that the certificate was madе for the primary purpose of ‘administration of an entity’s affairs.’ Melendez-Diaz, 557 US at 324 .
«* * * * *
“As discussed [in the portion of the opinion dealing with Article I, section 11], the primary purpose for which the certificate of service in this case was created was to serve the administrative functions of the court system, ensuring that defendant, the respondent in the restraining order proceeding, received the notice to which he is statutorily and constitutionally entitled, establishing a time and manner of notice for purposes of determining when the order expires or is subject to renewal, and assuring the petitioner that the subject of the order knew of its existence. It was foreseeable that the certificate might be used in a later criminal prosecution to furnish proof that defendant had notice that the order had been entered against him. However, the more immediate and predominant purpose of service was to ensure that defendant could — and would— comply with the order — that is, avoid a violation [.]
* * * *
“Because the [U.S. Supreme] Court has not held, nor otherwise indicated, that a document primarily created for an administrative purpose could be rendered testimonial merely by the possibility that it might be used in a later criminal prosecution, we likewise refrain from doing so in this case.”
Copeland,
From this treatment of the “testimonial or non-testimonial” question, we derive several precepts. First, a central question is whether the primary purpose of document at issue, under the circumstancеs of its creation, was for use in litigation, in which case it is testimonial, or to serve the administrative functions of the issuing entity, in which case it is not. The other factors mentioned in the case law are useful primarily because they provide guidance in answering that question. Thus, if a document is prepared with focus on a particular individual — for example, a document identifying a substance seized from that individual— the document is likely to be considered testimonial because an objective observer would conclude that the purpose of the document was to aid in the prosecution of that individual, whereas a document such as the routine certification of a breath-testing machine is likely nontestimonial. Similarly, a document prepared at the specific request of a law enforcement official, as opposed to one that is prepared pursuant to a statute or rule, is likely to be testimonial. A document that contains the sworn statement of the person who prepared or issued it is likely to have been made for use in court.
Second, an otherwise nontestimonial routine or ministerial document prepared pursuant to statute is not testimonial еven if the preparer knows that the document could be used, and is used, in a future trial.
Applying those precepts, we conclude that the notice of suspension in the present case, like the return of service in Copeland, was not testimonial. It is true that it bears some of the characteristics of testimony. It is directly relevant to a fact that could determine whether defendant is guilty or not. Unlike, for example, the certification of a breath-testing machine, the notice of suspension was directed toward a particular individual. However, to the same extent that the return of service in Copeland was nontestimonial because its рrimary purpose “was to serve the administrative functions of the court system, ensuring that [the] defendant * * * received the notice to which he is statutorily and constitutionally entitled,”
In a second assignment of error, defendant maintains that, even with the notice in evidence, he nonetheless was entitled to a judgment of acquittal. When an MJOA is
Affirmed.
Notes
ORS 811.180(1) provides, in part:
“ [I] t is an affirmative defense to the offenses described in ORS 811.175 and 811.182 that:
«* * * * *
“(b) The defendant had not received notice of the defendant’s suspension!.]”
Defendant did not raise any argument under Article I, section 11, of the Oregon Constitution at trial or on appeal. This case thus presents an as-yet unresolved conflict. Under Oregon court’s “first things first” doctrine, we have an obligation to address state constitutional law claims before federal ones. See State v. Kennedy,
Haselton, C. J., vice Wollheim, S. J.