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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE 

### STATE OF WASHINGTON, ) No. 70043-0-1 ) Respondent, ) ) v- ) ) 

### JUAN PEDRO ORTIZ-VIVAR, ) UNPUBLISHED OPINION ) Appellant. ) FILED: April28,2014 ) Verellen, A.C.J. — In orderto introduce blood alcohol test results, the State 

### must produce prima facie evidence that the vials into which the blood sample were 

### placed contained the enzyme poison and anticoagulant as required bystate regulations. Here, the toxicologist testified that the tests were performed incompliance with state regulations and that the condition ofthe blood sample and the test results themselves 

### revealed that there were sufficient anticoagulants and enzyme poison inthe vials. Juan Ortiz-Vivar contends that the admission ofthe manufacturer's certificate 

### stating that a particular lotnumber ofgray-topped blood vials contained specified chemicals violated the confrontation clause. But Ortiz-Vivar does not establish that this business record is testimonial in nature. The trial court did not violate the confrontation clause or abuse its discretion in admitting the certificate orthe blood test results. We affirm.No. 70043-0-1/2

FACTS 

### OnSeptember2, 2011, an employee ofAce Hardware noticed a customer, Juan 

### Ortiz-Vivar, slurring his words and stumbling around in the store. Theemployee observed Ortiz-Vivar leave the store and get into his car. She noticed that Ortiz-Vivar 

### was having difficulty getting into and starting the car, as well as pulling out of the parking space. Concerned about his behavior, she called the police. OfficerAaron 

### Cohen was thefirst toarrive. Henoticed a strong order ofalcohol emanating from the
car. Officer Cohen observed a white chunkysubstance falling from Ortiz-Vivar's mouth. 

### Ortiz-Vivarwas slurring hiswords as he got out of his car. OfficerCohen caughtOrtizVivar to prevent him fromfalling to the ground. Another officer, Andrew Litke, collected
a white crystal substance and turned itover to Officer Cohen. OfficerWalter Martinez assisted with Spanish translation. Martinez testified that Ortiz-Vivar claimed he had four shots oftequila that afternoon. Officer Martinez observed that Ortiz-Vivar's coordination 

### was poor, that he had a hard time standing, that his eyes were red and watery, and that 

### his breath smelled ofintoxicants. Based on Martinez'sexperience and training, he concluded that Ortiz-Vivarwas extremely impaired. Because of his condition, OrtizVivarwas transported to the hospital. 

### Ortiz-Vivaragreed to a blood test. From his patrol car, Officer Martinez retrieved gray-topped vials provided to the police by the Washington State Patrol lab. He testified that those gray-topped vials contained a white powder but that he did not know the chemical content ofthat powder. Martinez observed the phlebotomist draw Ortiz-Vivar's 

### blood. OfficerCohen also observed the blood draw and took the vials intocustody afterwards.No. 70043-0-1/3


### Chris Johnston with the Washington State toxicology lab inSeattle performed the blood analysis and wrote the toxicology report on Ortiz-Vivar's blood. Johnston testified 

### that itappeared the blood vials contained an anticoagulant enzyme. Johnston further testified that there was an enzyme preservative in allthe gray-topped tubes used for these blood draws and identified the vials as the specific vials provided to various police agencies for blood draws in driving under the influence (DUI) cases. Over a relevance objection, the trial court admitted as a business record the manufacturer's certificate of delivery ofthe lot of blood vials that included the vials used to test Ortiz-Vivar's blood. Over defense objections to a lack offoundation, the court admitted the blood test results which showed that Ortiz-Vivar had a blood alcohol level of0.1710. A jury found Ortiz-Vivar guilty of DUI. The court imposed a sentence within the standard range. He appeals. ANALYSIS Ortiz-Vivar argues that his conviction was based in part on blood test results that
were not demonstrably reliable. Specifically, he contends that the prosecution failed to establish that his blood sample was properly preserved with an anticoagulant and an enzyme poison. We review a trial court's ruling on the admissibility of a blood alcohol test result for an abuse ofdiscretion.1 Before blood alcohol test results can be admitted into evidence, the State must 

### present prima facie evidence that the test chemicals and blood sample are free from

1 State v. Brown. 145 Wn. App 62, 69, 184 P.3d 1284 (2008).No. 70043-0-1/4


### any adulteration that could conceivably introduce error into the test results.2 

### RCW46.61.506(3) requires blood tests to beperformed in compliance with Washington Administrative Code (WAC) regulationspromulgated by the state toxicologist. WAC448-14-020(3)(b) provides: Blood samples for alcohol analysis must be preserved with an 

### anticoagulant and an enzyme poison sufficient inamountto prevent clotting and stabilize the alcohol concentration. Suitable preservatives and anticoagulants include the combination of sodium fluoride and potassium oxalate. 

### RCW 46.61.506(4)(b) provides that primafacie evidence is evidence that supports a logical and reasonable inference of the facts soughtto be proven. In a challenge to the admission ofblood alcohol test results, the trial court
assumes the truth ofthe State's evidence and draws all reasonable inferences from it in 

### the light most favorable to the State.3 Once the State shows that it has compliedwith the WAC,thejury determines the weight to be given to the blood test result.4 

### Here, the trial court correctly determined thatthe State met its prima facie burden of proof. InState v. Brown, the court held that the State presented sufficientevidence thatthe gray-topped vials contained the necessary amounts of required chemicals.5 There, the toxicologist stated that he knew that the blood sample vials included an appropriate combination ofsodium fluoride and potassium oxalate as noted inthe



### 2State v.Wilbur-Bobb. 134 Wn. App 624, 630, 141 P.3d 665 (2006). 3RCW46.61.506(4)(b). 4RCW46.61.506(4)(c). 5 145 Wn. App 62, 76, 184 P.3d 1284 (2008).No. 70043-0-1/5
manufacturer's certificate because the blood would be clotted and no alcohol would 

### have been detected in the sample ifthose chemicals were not present in the vials.6 

### In State v. Wilbur-Bobb. a photograph of the label on the vials containing the 

### blood samples showed that thevials contained sodium fluoride.7 Thephoto, together 

### with thetoxicologist's testimony thatsodium fluoride was theenzyme poison required by the regulation, was sufficient.8 

### InState v. Steinbrunn. testimony that the blood samples were free of adulteration 

### and tested in accordance with the WAC was sufficientto establish a prima facie case where the nurse testified the hospital supplied the vial, the toxicologisttestified that the vial manufacturers always put anticoagulants into the type of vials itsentto the hospitals.9 

### In State v. Barefield. this court held that a toxicologist's testimony that the vial manufacturer always putanticoagulants in the vials and that the blood sample was unadulterated when he ran the tests was sufficient prima facie evidence of compliance.10 Here, the toxicologist testified that the tests would not have been successful had 

### the appropriate chemicals notbeen in the vials and that the vials were properlysealed. Further, the toxicologist testified that the gray-topped vials were certified by the

6Id, at 71. 

### 7 134 Wn. App. 627, 630-32, 141 P.3d 665 (2006). 8jd, at 631-32. 

### 954 Wn. App. 506, 513, 774 P.2d 55 (1989). 

### 1047 Wn. App. 444, 458, 735 P.2d 1339 (1987).No. 70043-0-1/6


### manufacturer as having the appropriate chemical composition. The State provided an adequate foundation for the admission ofthe blood test results. Ortiz-Vivar next contends the admission ofthe manufacturer's certificate violated 

### his right ofconfrontation. The Sixth Amendment confrontation clause confers upon the 

### accused the right "to be confronted with the witnesses against him."11 Testimony is usually a solemn declaration or affirmation made forthe purpose ofestablishing or 

### proving a particularfact.12 Business records that have been "created for the administration ofan entity's affairs and not for the purpose ofestablishing or proving
some fact at trial" typically are not testimonial and therefore not subject to the confrontation clause.13 We review a trial court's decision to admit or exclude business records for a manifest abuse ofdiscretion.14 In a footnote, Ortiz-Vivar contends he can raise his confrontation issue for the first time on appeal, but he does not address the authority that failure to raise confrontation issues at or before trial bars any consideration on appeal. "Aclear line of decisions—Melendez-Diaz, Bullcoming. Jasper, and Haves—requires that a defendant raise a Sixth Amendment confrontation clause claim at or before trial or lose the benefit

11 Crawford v. Washington, 541 U.S. 36, 42, 124 S. Ct. 1354, 158 L Ed. 2d 177 (2004).

### 12 id at 51. 13 Melendez-Diaz v. Massachusetts. 557 U.S. 305, 324, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009). 14 State v. Zeigler. 114 Wn.2d 533, 538, 789 P.2d 79 (1990).No. 70043-0-1/7 

### of the right."15 The same rule applies to the articleI, section 22 confrontation clause 

### right oftheWashington Constitution.16 Neitherdoes heofferanymanifesterrortheory. Even if he had properly preserved the issue, he does not establish that the certificate was testimonial. 

### Themanufacturer's certificate simply certified that the products ordered bythe lab were"in compliance with the currentFDA Quality SystemRequirements (QSR) as stipulatedin 21 CFT part820."17 The product number was listed, alongwith a description and a lot numberfor the vials that were manufactured to the state 

### toxicologist specifications for a particular draw volume and the presence of potassium 

### oxalate and sodiumfluoride. Thetoxicologist testified that the certificate was kept as a business record, showing that the gray-topped vials were ordered fromthe 

### manufacturercontaining the appropriate chemicals and listing the particular vials contained inthe specific lot number identified on the manufacturer's certificate. 

### Ortiz-Vivarobjected to the admission of the certificate only for lack of relevance. The trial court concluded that the certificate was relevant and admissible under the exceptions to the hearsay rule as a business record. Health care documents often 

### qualify as business records.18


### 15 State v. O'Cain. 169Wn. App. 228, 248, 279 P.3d 926 (2012) (citing Melendez-Diaz v. Massachusetts. 557 U.S. 305, 129 S. Ct. 2527, 174 L Ed. 2d 314 (2009): Bullcoming v. New Mexico. U.S. 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011); State v. Jasper, 174 Wn.2d 96, 271 P.3d 876 (2012); State v. Haves. 165 Wn. 

### App. 507, 265 P.3d 876 (2012), review denied. 176 Wn.2d 1020 (2013)). 16 id, at 252. 17 Ex. 11. 

### 18 See Ziegler, 114Wn.2d at 540 (lab report ordered by nontestifying physician held admissible as business record where testifying physician relied on report inNo. 70043-0-1/8 

### Here, thetoxicologisttestified about hisfamiliarity with the gray-topped vials that
were purchased for the express purpose of blood analysis. He furthertestified that the 

### manufacturer's certificate contained the same lot numberas thegray-topped vial used toanalyze Ortiz-Vivar's blood. Themanufacturer's certificate did notcontain anyblood test results and merely listed the lot numberfor the vials that were ordered to the state 

### toxicologist's specifications. Thetestimony ofthetoxicologistestablishes a legitimate business purpose, and Ortiz-Vivardoes not establish that the certificatewas preparedin anticipation of litigation. 

### Ortiz-Vivarrelies upon Brown as authority that such certificate is inadmissible 

### hearsay. Butthe courtin Brown did notaddress a business records analysis, mentioned only inpassing the potential for a confrontation clause concern, and 

### ultimately concluded that any error in admitting the certificate was harmless under the 

### constitutional harmless error analysis. The key to Brown is that the toxicologisttestified that "the samples would have been clotted and would contain no alcohol in the absence 

### of the chemicals" and that "there was other sufficient evidence proving that the vials contained the required stabilizer and preservative."19 Here, the toxicologist provided similar testimony as to Ortiz-Vivar's blood sample.20

treatment ofpatient); State v. Doerflinger. 170 Wn. App. 650, 664-65, 285 P.3d 217 

### (2012) (radiologist report confirming treating physician's diagnosis ofnasal fracture 

### properly held admissible as a business record), review denied. 177 Wn.2d 1009 (2013). 

### 19 Brown, 145 Wn. App. at 76. 20 In Brown, the court also noted that the label on the vials had been admitted. 

### Id. at 72. Even though the labels were not admitted here, the toxicologist's testimony renders any confrontation concern harmless beyond a reasonable doubt.

8No. 70043-0-1/9
Ortiz-Vivarfiled a statement of additional grounds, arguing that he should not
serve anyjail time because ofthe initiative he has undertaken in seeking counseling. This is the same request that he made below. The court sentenced him to 364 days, 359 days suspended, provided he meets certain conditions including five days ofactual confinement. Ortiz-Vivar does not assert that the sentence was illegal. He does not establish any grounds for this court to alter the time he must serve in jail. Affirmed.

WE CONCUR: 

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