Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII). ORS 813.010. His sole contention on appeal is that the trial court erred in admitting documentary evidence of the accuracy of an Intoxilyzer without proof that the technician who prepared the documents was unavailable to testify. According to defendant, without such proof of unavailability, the admission of the documents violates his confrontation rights guaranteed under Article I, section 11, of the Oregon Constitution. We affirm.
The relevant facts are not in dispute. Officer Buchanan saw defendant driving back and forth between lanes without signaling. When he stopped defendant, he noted various signs of alcohol consumption and asked defendant to perform field sobriety tests. Defendant agreed. Based on defendant’s performance of those tests, Buchanan determined that defendant was under the influence of intoxicants and placed him under arrest. At the police station, defendant agreed to submit to an Intoxilyzer breath test to determine his blood alcohol content (BAC). Defendant completed the test, which indicated a BAC of .12 percent.
At trial, the state offered into evidence two documents certifying that the .12 percent BAC test result was accurate and that the test complied with the statutory requirements for chemical analysis of a person’s breath set out in ORS 813.160. Defendant objected, arguing that the documents are hearsay and that admission of them without establishing the unavailability of the person who prepared them would violate his confrontation rights guaranteed by Article I, section 11. The trial court overruled the objection and admitted the certifications under OEC 803(8)(b), the public records exception to the hearsay rule.
On appeal, defendant assigns error to the admission of the certifications. He concedes that the certifications are admissible under the public records exception to the rule against hearsay, OEC 803(8)(b). He argues that, under
State
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v. Campbell,
Article I, section 11, of the Oregon Constitution provides, in part, that a defendant in a criminal prosecution has the right “to meet the witnesses face to face[.]” It is an unqualified statement, to be sure. Nevertheless, the courts have never read it literally. In fact, the wording of the provision repeats, verbatim, a provision of the 1853 territorial code, which, in turn, was based on the common law. As the Oregon Supreme Court has observed, based on the framers’ adoption of that codification of common-law principles, it is clear that Article I, section 11, “goes no further in its protections than does the rule at common law; that its adoption carried with it the well-established exceptions to the hearsay rule as known to the common law.”
State ex rel. Gladden v. Lonergan,
One such historical exception to the hearsay rule known to the common law applied to documentary evidence regarding collateral facts. As Cooley explained in his well-known, and much cited, treatise on constitutional law, “[t]he rule that the prisoner shall be confronted with the witnesses against him does not preclude such documentary evidence as would be admissible under the rules of the common law in other cases.” Thomas M. Cooley,
A Treatise on the Constitutional Limitations
318 n 2 (1868);
see also, e.g., Gaines v. Relf,
53 US (12 How) 472, 570,
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The Oregon Supreme Court recognized that very exception to Article I, section 11, early in this state’s juridical history in
State v. Saunders,
“The rule, although sanctioned by constitutional declaration, like all general rules, has its exceptions. It does not apply to such documentary evidence to establish collateral facts, as would be admissible under the rules of the common law in other cases.”
Id.
In
State v. Conway,
The Oregon Supreme Court revisited the scope of Article I, section 11, in
Campbell.
The precise issue before the court was the admissibility of hearsay testimony by a three-year-old victim of sexual abuse.
Campbell,
We are hesitant to read too much into Campbell. Although the court employed broad phrasing in certain passages, it must be recalled that the court nevertheless was addressing a narrow issue — one that did not involve the sort of historical exception that the court itself previously had identified in Saunders and that we invoked in Conway. Certainly, the court gave no hint that it intended Campbell, in effect, to overrule its prior case law identifying the types of hearsay to which the confrontation protections of Article I, section 11, do not apply.
That, in any event, is how we have read
Campbell
in subsequent cases. In
State v. Hancock,
“We believe that that statement must be read in the context of the issues raised in Campbell and does not establish an inflexible unavailability rule under the Oregon Constitution, applicable in every criminal case regardless of the circumstances. For example, the public records exception to the hearsay rule, OEC 803(8), is routinely used to admit hearsay statements contained in reports and documents such as Intoxilyzer inspection certificates. See State v. Conway,70 Or App 721 ,690 P2d 1128 (1984), rev den,298 Or 704 (1985).”
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Hancock,
Meanwhile, the Oregon Supreme Court returned to the scope of Article I, section 11, in
State v. Moore,
Again, we hesitate to read the Supreme Court’s decision too broadly. As in
Campbell,
the issue before the court in
Moore
was narrow. It did not involve the sort of historical exception that is involved in this case and that the court recognized in prior cases such as
Saunders
and
Gladden,
in which the court held that “[t]here is nothing to indicate that the framers of our constitution intended thereby to do away with the well-established exceptions to the confrontation rule.”
Gladden,
We therefore conclude that Conway remains good law. Under Conway, the unavailability requirement that otherwise may apply under Article I, section 11, does not apply in this case, because the framers of the Oregon Constitution would have understood public and official records to have constituted an exception to the confrontation rights guarantee. The trial court did not err in admitting the Intoxilyzer certifications in this case.
Defendant argues that, if Article I, section 11, does not require proof of unavailability, the Sixth Amendment does, under the United States Supreme Court’s decision in
Crawford v. Washington,
Affirmed.