COURT OF APPEALS OF VIRGINIA
Present: Judges Fr ank, Humphreys and Haley Argued at Salem, Virginia

WILLIAM JERRY WIMBISH OPINION BY v. Record No. 2873-06-3 J UDGE ROBERT J. HUMPHREYS APRIL 8, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT C OURT OF HENRY COUNTY G. Carter Greer, Judge James W. Haskins (Scott C. Wa ll; Young, Haskins, Mann, Gregory, McGarry & Wall, P. C., on briefs), for appellant. Leah A. Darron, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
William Jerry Wimbish appeals his convict ion for driving a motor vehicle while intoxicated, in violation of Code § 18.2-266, and the mandatory ten- day jail sentence he received as required by Code § 18.2-270. Wimbis h raises two issues on appeal. First, he argues that the admission of the “Certificate of Blood Alcohol Analysis” by th e trial court violated his confrontation right under the Sixth Amendment to the United States Constitution. Second, he argues that the trial court erred by sentencing him to ten days in jail as required by Code § 18.2-270 because Code § 18.2-270 contains an unc onstitutional mandatory presumption. For the following reasons, we affirm the trial court’s decision.
I. Background “Under familiar principles of appellate review, we view the evidence and all reasonable inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the party that prevailed below.” Banks v. Commonwealth , 41 Va. App. 539, 543, 586 S.E.2d- 2 - 876, 877 (2003). So viewed, the evidence established that on the night of December 23, 2006, Virginia State Trooper Eric J. O’Connell (“O’ Connell”) was on patrol in Henry County. While patrolling, he observed a 1984 Merc edes sedan make an unusually wide right turn onto T.B. Stanley Road, nearly running off of the left si de of the road. O’Conne ll followed the Mercedes and observed the vehicle weave back and forth across the road’s center yellow lines several times. Suspecting that the driver might be dr iving under the influence, O’Connell initiated a traffic stop. Standing at the Mercedes’ window, O’Connell asked the driver for hi s driver’s license and registration card. O’Connell immediately smelle d alcohol on the driver’s breath. O’Connell also observed that the driver’s speech was slurred, his eyes were bloodshot, and he had a difficult time taking his driver’s license out of his pocket. The driver’s license identified him as William Jerry Wimbish (“Wimbish”). O’Connell asked Wimb ish to step out of the vehicle. Wimbish stepped out of the vehicle and “swayed heavily” as he walked. He admitted that he had just left a party where he had consumed f our beers and two margaritas, c onsuming the last drink an hour earlier. He stated that he felt intoxicated. Wimbis h failed a field sobriety te st and refused to take another stating: “There’s no need to do any more tests. You know I’ve had too much to drink.” O’Connell placed Wimbish under arrest and took him to the magistrate’s office. At the magistrate’s office, O’Connell, a licensed breath test operator, conducted a breath test on Wimbish using the Intoxilyzer 5000. As pa rt of his ongoing training as a breath test operator, O’Connell had recently completed a recer tification course through the Department of Forensic Science (“the Department”). In c onducting the test, O’Connell completed each step pursuant to a checklist (“the Checklist”) provide d by the Department. The Checklist contains eleven steps for conducting a breath test.- 3 - Following the test, the Intoxilyzer 5000 printed the results on a pre-printed form entitled “CERTIFICATE OF BLOOD ALCOHOL ANALYSIS” (“ the Certificate of Analysis”). The Certificate of Analysis form contained a number of blank fields that were filled in by a printer attached to the Intoxilyzer 5000. Some of this information was entered by the machine operator, including 1) the name of the accused, 2) the name of the jurisdiction, 3) the name and license number of the breath test operator and the date th e officer’s license expires, and 4) the name of the agency conducting the test. Other informati on printed upon the certificate by the Intoxilyzer 5000 was generated by the machine itself, including 1) the test equipment’s number, 2) the last date on which the test equipment was tested, 3) the date and time the breath sample was taken, and 4) the sample’s alcohol content. The information pr ovided by the Intoxilyzer on the Certificate of Analysis also indicated that Wimb ish’s breath had an alcohol content of .22 grams per 210 liters of breath, which is over the statut ory limit of 0.08 grams per 210 liters of breath. The Certificate of Analysis indicated that th e Intoxilyzer had been tested on November 30, 2005. 1 At the bottom of the Certificate of Analysis is an attestation clause that states: I certify that the above is an accura te record of the test conducted; that the test was conducted with the type of equipment and in accordance with the methods approved by the Department of Forensic Science; that the test was conducted in accordance with the department’s specifications; that the equipment on which the breath test was conducted has been tested within the past six months and found to be accurate; that prior to administration of the test the accused was advised of hi s right to observe the process and see the blood alcohol reading on the equipment used to perform the breath test, and that I possess a va lid license to conduct such test, given under my hand this _______ day of _____________ , 20___.

1 O’Connell also testified that a logbook is kept with the In toxilyzer 5000 that contains a record of every time the machine is tested for a ccuracy and that the log also indicated that the machine had been tested on November 30, 2005.- 4 - O’Connell wrote the date of the test in the blank spaces in the at testation clause and signed his name in the box beneath the attestation clause marked “BREATH TEST OPERATOR.” Wimbish was subsequently convicted in general district court of driving while intoxicated, in violation of C ode § 18.2-266. Wimbish appealed that conviction to the circuit court. Before trial, Wimbish made a motion aski ng the trial court to suppress the Certificate of Analysis, arguing that its admission would violat e his right of confrontation under the Sixth Amendment to the United States Constitution. The trial court denied his motion, holding that the Certificate of Analysis was not testimonial and therefore did not implicate the Sixth Amendment. The trial court subsequently found Wimbish guilty of driving while intoxi cated, in violation of Code § 18.2-266. After being found guilty, but prior to sent encing, Wimbish argued that the relevant sentencing provision of Code § 18.2-270 is unconstitutional because it contains an unconstitutional mandatory presumption. The trial court rejected his argument and sentenced him to the mandatory ten days in jail pursuan t to Code § 18.2-270. This appeal follows.
II. Analysis
A. The Constitutionality of Admitting the Certificate of Analysis In his first question presented, Wimbish argue s that the admission of the Certificate of Analysis violated his right to confrontation under the Sixth Amendment. Specifically, Wimbish claims that the test results provided by the Intoxilyzer 5000 and certain statements made by O’Connell in the attestation clause are testimonial hearsay. The admissibility of evidence is within the discretion of the trial court, and we review its decisions only for abuse of discretion. Blain v. Commonwealth , 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). However, whether the Certificate of Analysis violates the Sixth Amendment as- 5 - “‘testimonial hearsay’ [] is a question of law, reviewed de novo by this Court.” Michels v. Commonwealth , 47 Va. App. 461, 465, 624 S.E.2d 675, 678 (2006). The Confrontation Clause of the Sixth Amendment to the Unite d States Constitution mandates that “in all criminal prosecutions, the accuse d shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. That “bedrock procedural guarantee applies to both federal an d state prosecutions.” Crawford v. Washington , 541 U.S. 36, 42 (2004) (citing Pointer v. Texas , 380 U.S. 400, 406 (1965)).
In Crawford , the Supreme Court of the United States set out to clarif y its Confrontation Clause jurisprudence in order to ensure that it remained “faithful to the Framers’ understanding” of the confrontation right. Id. at 59. The Court noted that th e Confrontation Clause targeted a specific “evil,” namely the “civil- law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.” Id. at 49. That historical concern centered on the admission of ex parte statements taken by government o fficials, serving “an essentially investigative and prosecutorial function,” at trial in lieu of live testimony. Id. at 43, 53. The Court held that, because the right of confront ation developed in res ponse to those specific abuses, “[t]he Sixth Amendment must be in terpreted with [that] focus in mind.” Id. at 50. For the first time, the Court in Crawford distinguished between “testimonial” and “non-testimonial” statements. The Court reasoned that the Confrontation Clause protects against “testimonial” statements because, by its own language, it only “applies to ‘witnesses’ against the accused – in other words, t hose who ‘bear testimony.’” Id. at 51 (quoting 1 N. Webster, An American Dictionary of the English Language (1828)). The Court held that the Confrontation Clause bars the “admission of testimonial statemen ts of a witness who did not appear at trial unless he was unavailable to testify, and th e defendant had had a prior opportunity for cross-examination.” Id. at 53-54. By contrast, the Court held that “[w]here nontestimonial- 6 - hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law,” even sugges ting that such statements may be “exempted [] from Confrontation Clause scrutiny altogether.” Id. at 67. Although the Cour t explicitly “[left] for another day any effort to spel l out a comprehensive definition of ‘testimonial,’” it did provide that, “at a minimum,” the term applies “to prio r testimony at a preliminary hearing, before a grand jury, or at a former tria l; and to police interrogations.” Id. The issue in this case is wh ether portions of the Certificate of Analysis, namely the breath test results and the attestation clause, are “testimonial” and, thus , subject to the Confrontation Clause. Because the portions of the Certificate of Analysis that Wimbish complains of include “statements” from two different sources – O’C onnell and the Intoxilyzer 5000 – we must address each separately.
1. Breath Test Results Wimbish first challenges the results of the breath test pr oduced by the Intoxilyzer 5000. In order to assess Wimbish’s argument, it is ne cessary first to understa nd the source generating the data or “statement” that Wimbish complains of and then determine wh ether that source is a “witness.” The “statement” that Wimbish’s brea th-alcohol content was “ .22 grams per 210 liters of breath” was generated by the Intoxilyzer 5000 i ndicating the device’s analysis of his breath. Thus, the Intoxilyzer 5000 wa s the purported “witness” ma king the alleged out-of-court
“statement.” The Confrontation Clause protects criminal defendants from the “admission of testimonial statements of a witness who did not appear at trial.” Id. at 53-54 (emphasis added). “Only [testimonial statements] cau se the declarant to be a ‘witness’ within the meaning of the Confrontation Clause.” Davis v. Washington , 547 U.S. 813, 821 (2006). Although there is much dispute over what specific types of eviden ce fall within the scope of the Confrontation- 7 - Clause, under even the broadest interpretati on the clause applies only to out-of-court statements made by witnesses . Thus, the right of confrontation does not affect the admissibility of evidence that is not a statement made by a witness. Although Virginia courts have not addressed wh ether a machine that analyzes the alcohol content of breath is a “witness” that can make “statements” for the purpose of the Confrontation Clause, we addressed a similar issue in Penny v. Commonwealth , 6 Va. App. 494, 370 S.E.2d 314 (1988). Penny involved the admissibility of a report produced by a “call trap” device that monitored telephone activity on a particular telephone line. Id. at 498, 370 S.E.2d at 316. We rejected the argument that the machine’s report was an out-of-court statement made by a witness and subject to the general rule preventing the admission of hearsay: With a call trap device, there exists no out-of-court declarant who could be subject to cross-examina tion. The scientific advances of modern technology have enabled th e call trap device to make and record the occurrence of electronic events. No human entered into the call trap device the conclu sion that the phone in Penny’s residence had completed a contact with the phone in Hamilton’s residence. Id. at 498-99, 370 S.E.2d at 317. The Intoxilyzer 5000, like the call trap device in Penny , is not a witness or declarant capable of making statements. Here, as in Penny , no human entered into the Intoxilyzer 5000 the conclusion that Wimbish’s breath alcohol content was .22 grams per 210 liters of breath. Wimbish blew into the machine, the machine anal yzed his breath and reported the results of its analysis. The machine was the sole source of the test results. Thus the result of the breath test was merely data produced by a machine, not a statement produced by a witness. See United
States v. Moon , 512 F.3d 359, 362 (7th Cir. 2007) (“[D]ata are not ‘s tatements’ in any useful sense. Nor is a machine a ‘witness against’ anyone.”); United States v. Washington , 498 F.3d 225, 230 (4th Cir. 2007) (“‘[S]tatements’ made by machines are not out-of-court statements- 8 - made by declarants that are subjec t to the Confrontation Clause.”); Caldwell v. State , 495 S.E.2d 308, 310 (Ga. Ct. App. 1997) (holding that printouts from a breath test machine “are not hearsay but rather the mechanically-generated reports au tomatically created by the machine. They do not constitute out-of-court statements by any person or the conclusion of a third party not before the court . . . .” (internal citations omitted)); State v. Van Sickle , 813 P.2d 910, 913 (Idaho Ct. App. 1991) (a “printout from the Intoximeter is not a ‘s tatement’ for hearsay purposes . . . the printout is a test result produced by a machine”); see also People v. Jambor , 729 N.W.2d 569, 575 (Mich. Ct. App. 2007) (fingerprint cards containing only “objective info rmation” and not “subjective statements” are not testimonial). Because the breath test result is not a statement made by a witness, the Confrontation Clause does not place any restrictions on its admission. 2
2. Attestation Clause Wimbish claims that two of the assertions O’Connell made in the attestation clause are testimonial. The relevant portion of the attestation clause states: “I certify . . . that the test was conducted with the type of equipment and in accordance with the me thods approved by the

2 We acknowledge that courts in other jurisdictions have held certain types of scientific reports to be testimonial. However the reports in those cases were generally either produced or interpreted by a scientist or a technician. See Thomas v. United States , 914 A.2d 1 (D.C. 2006) (lab report prepared by a chemist is testimonial); Martin v. State , 936 So. 2d 1190 (Fla. Dist. App. 2006) (lab report prepared by a scientist is testimonial); State v. Laturner , 163 P.3d 367 (Kan. Ct. App. 2007) (lab report prepar ed by a scientist is testimonial); People v. Lonsby , 707 N.W.2d 610 (Mich. Ct. App. 2005) (sci entist’s “subjective observati ons and analytic standards” regarding scientific testi ng results are testimonial); State v. Caulfield , 722 N.W.2d 304 (Minn. 2006) (lab report prepared by a scientist is testimonial); State v. March , 216 S.W.3d 663 (Mo. 2007) (scientist’s “forensic analysis” of a substance is testimonial); State v. Kent , 918 A.2d 626 (N.J. Super. Ct. App. Div. 2007) (lab report prepared by a forensic sc ientist is testimonial). We do not decide today whether all scientific repo rts are nontestimonial because it is unnecessary for us to do so. See Magruder v. Commonwealth , 275 Va. 283, 657 S.E.2d 113 (2008) (declining to unnecessarily address whether certa in scientific reports are tes timonial because the defendants waived their Sixth Amendment rights). Rather, we merely hold that information generated by a machine, and presented without human analysis or interpretation is not testimonial because the machine is not a witness in any constitutional se nse and thus the data standing alone is not a testimonial statement under the Confronta tion Clause of the Sixth Amendment.- 9 - Department of Forensic Science [and] that th e equipment on which the breath test was conducted has been tested within the past six months and found to be accurate.” Wimbish claims that the Confrontation Clause barred admission of O’Conn ell’s assertions 1) that the test was conducted in accordance with approved methods and 2) that the machine had been tested in the past six months. We address each assertion separately.

a. O’Connell’s Assertion That He Used Approved Methods Wimbish argues that O’Connell’s assertion th at he conducted the br eath test “with the type of equipment and in accordance with the methods approved by the Department” is hearsay because O’Connell could not answer certain qu estions about the Department’s methods on cross-examination. O’Connell explained that he was able to follow the Department’s approved methods because he had received training from Alka Lohman (“Lohman”), the Director of the Department’s Division of Forensic Science Breath Section. Wimbish claims that he had a right under the Sixth Amendment to confront Lohman because she had instructed O’Connell on the Department methods that he was purportedly testifying about. “‘Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertio n to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.’” Stevenson v. Commonwealth , 218 Va. 462, 465, 237 S.E.2d 779, 781 (1977) (quoting McCormick on Evidence § 246 (2d ed. 1972)). Said differently, h earsay is “testimony given by a witness who relates, not what he knows personall y, but what others have told hi m, or what he has heard said by others.” Cross v. Commonwealth , 195 Va. 62, 74, 77 S.E.2d 447, 453 (1953). Wimbish argues that, by claiming to have followed the pr oper methods, O’Connell is testifying to the content of the methods, and, because he could not testify as to all of th e Department’s methods, that testimony is hearsa y. We do not agree.- 10 - In Oulds v. Commonwealth , 260 Va. 210, 532 S.E.2d 33 (2000), the Supreme Court of Virginia held that a police officer’s testim ony that he complied with certain municipal regulations was not hearsay. The Court held th at testimony that the officer complied with the regulations “was not offered to prove the existence and cont ent of such regulations” and, therefore, that testimony was not hearsay. Id. at 213, 532 S.E.2d at 35. Likewise, O’Connell’s testimony in this case was not offered to prove the content of the Department’s breath analysis methods. Nor was hi s testimony offered to prove the content of the training that O’Connell received from Lohman. The attestation clause merely states his opinion that he complied with the Department’s approved methods. Consequently, Wimbish’s argument that he was denied the right to cross-examine Lohman must fail. O’Connell’s statement that “the test was conducte d with the type of equipment and in accordance with the methods approved by the Department of Forensic Science” is not hearsay. It is not “what others have told him, or what he has heard said by others.” Id. at 213, 532 S.E.2d at 35. It is simply hi s opinion that he followed the rules. O’Connell’s later admission that he was not famili ar with all of the Department’s methods does not change his opinion testimony to hearsay. The extent of O’Conne ll’s knowledge of the Department’s methods goes only to the weight of his testimony, not its admissibility. As non-hearsay, O’Connell’s testimony did not implicate the Confrontation Clause. See Davis , 547 U.S. at 823 (holding that “the Confrontation Clause applies on ly to testimonial hearsay”). b. O’Connell’s Assertion That the Machine Ha d Been Tested in the Past Six Months O’Connell’s statement that “the equipment on which the breath test was conducted has been tested within the past six months and found to be accurate” is clearly hearsay, but that does not end the analysis. O’Connell admitted that he was not present when the machine was tested and that he only knew of the test because “that is what is in th e sheet in the log book.” Wimbish- 11 - argues that the admission of O’ Connell’s hearsay statement violated his rights under the Confrontation Clause because it was testimonial. We disagree. Since Crawford was decided, several other jurisdic tions have addressed the issue of whether similar maintenance logs are testimonial. 3 Those courts that have held that maintenance logs are nontestimonial have generally done so fo r one of two reasons. One line of cases holds that maintenance logs are not testimonial because they are business records “made and maintained in the ordinary course of business.” Boshancurt v. Eisenburg , 129 P.3d 471, 475 (Ariz. Ct. App. 2006); see e.g. State v. Godshalk , 885 A.2d 969, 973 (N.J. Super. Ct. Law Div. 2005) (inspection certificates are business records that Crawford “specifically excluded . . . from [its] scope”); Pierce v. State , 628 S.E.2d 235, 238 (Ga. Ct. App. 2006) (maintenance certificates are admissible as business records and, therefore, not testimonial); State v. Norman , 125 P.3d 15, 19 (Or. Ct. App. 2005) (test logs “are more akin to hearsay statements that were not considered testimonial in nature at common law, such as public or business records”). A second line of cases holds that maintenance logs are not tes timonial because they are not evidence “against” any particular defendant. See , e.g. , Rackoff v. State , 621 S.E.2d 841, 845 (Ga. Ct. App. 2005) (Maintenance logs “are not made in anticip ation of prosecution ag ainst any particular

3 An overwhelming majority of those courts have held that such logs are not testimonial. See Abyo v. State , 166 P.3d 55, 60 (Alaska Ct. App. 2007) (r ecords certifying the date that a breath test machine was te sted are nontestimonial); Boshancurt v. Eisenburg , 129 P.3d 471, 480 (Ariz. Ct. App. 2006) (same); Pierce v. State , 628 S.E.2d 235, 238 (Ga. Ct. App. 2006) (same); State v. Marshall , 163 P.3d 199, 205 (Haw. Ct. App. 2007) (same); Napier v. State , 820 N.E.2d 144, 149-50 (Ind. Ct. App. 2005) (same); People v. Kim , 859 N.E.2d 92, 93-94 (Ill. App. Ct. 2006) (same); Commonwealth v. Walther , 189 S.W.3d 570, 575 (Ky. 2006) (same); State v. Carter , 114 P.3d 1001, 1007 (Mont. 2005) (same); State v. Godshalk , 885 A.2d 969, 973 (N.J. Super. Ct. Law Div. 2005) (same); State v. Dedman , 102 P.3d 628, 636 (N.M. 2004) (same); People v. Kanhai , 797 N.Y.S.2d 870, 875 (N.Y. Crim. Ct. 2005) (same); State v. Norman , 125 P.3d 15, 18 (Or. Ct. App. 2005) (same); see also State v. Fischer , 726 N.W.2d 176, 184 (Neb. 2007) (document certifying the accuracy of the solu tion used to test a breath test machine was nontestimonial); State v. Shisler , 2006 Ohio 5265, P15 (Ohio Ct. App. 2006) (same); but see Shiver v. State , 900 So.2d 615, 617 (Fla. Dist. Ct. App. 2005) (a record of the date that maintenance was performed on a breath test machine was testimonial).- 12 - defendant.”); State v. Carter , 114 P.3d 1001, 1007 (Mont. 2005) (“ Certification reports are nontestimonial in nature in that they are foundational, rather than substantive or accusatory.”); People v. Kim , 859 N.E.2d 92, 94 (Ill. App. Ct. 2006) (“[T]he evidence [in a maintenance certification] is not ‘against’ any particular defendant.”). We find the analysis supporting both lines of cases persuasive. Crawford explicitly excluded business records from its definition of testimonial. Crawford , 541 U.S. at 55 (“Most of the hearsay ex ceptions covered statements that by their nature were not testimonial – for example, busine ss records . . . .”). A lthough not specifically characterized as such in prior case law, In toxilyzer 5000 maintenance logs are essentially business records for the purposes of the Confrontation Clause. Th e maintenance logs are created by state employees conducting tests of the machines as part of their routine ministerial duties. Tests of the Intoxilyzer 5000 are conducted because they are require d by administrative rule, not in anticipation of any particular litigation. See 12 VAC 40-20-30 (“Breath tests shall be tested for accuracy by the [D]epartment at least once ev ery six months.”). These logs, kept in the ordinary course of business by state employees, recording the completion of required tasks, are essentially business records and their admission doe s not resemble the type of civil law abuses that the Confrontation Clause wa s intended to protect against. Furthermore, the Intoxilyzer 5000 maintenan ce logs do not pose a confrontation issue because they are not prepared “against” any par ticular defendant. This reasoning is consistent with our holding in Michels . In Michels , we held that certificates from the Delaware Secretary of State certifying that two entities were not licen sed as limited liability companies in Delaware were nontestimonial. Michels , 47 Va. App. at 466, 624 S.E.2d at 678. We recognized that “the Confrontation Clause is aime d at protecting criminal defendants from those people making accusations against them.” Id. (emphasis added). We reasoned th at “the certificates are not by- 13 - their nature accusatory and do not describe any criminal wrongdoing of appellant. Rather, they are a neutral repository of inform ation that reflects the objective results of a search of public records.” Id. at 469, 624 S.E.2d at 680. We held th at such “documents establishing the existence or absence of some objective fact, rath er than detailing the cr iminal wrongdoing of the defendant, are not ‘testimonial.’” 4 Id. at 467, 624 S.E.2d at 678. Likewise, in Anderson v. Commonwealth , 48 Va. App. 704, 634 S.E.2d 372 (2006), we held that a certificate offered as evidence of the chain of custody pursuant to Code § 19.2-187.01 is not testimonial. Again recognizing the Confrontation Clause’s protection against “accusatorial” statements, we held that “the chain of custody verification provides only foundation evidence that cannot be fairly characterized as accusatorial.” Id. at 715, 634 S.E.2d at 377. Because it is not accusatory, “the chain-of -custody inference . . . constitutes nontestimonial evidence outside the protective ‘perimet er’ of the Confrontation Clause.” Id. The maintenance log at issue in this cas e is not evidence “against” any particular defendant. The logs are not created in antici pation of litigation against any one person and do not contain any accusations of criminal wrongdoi ng. As required by administrative rule, the Intoxilyzer 5000 would be tested and the log would be kept regardless of whether or not the machine is ever used. These logs are merely “ documents establishing the existence or absence of some objective fact, rather th an detailing the criminal wr ongdoing of the defendant.” Michels , 47 Va. App. at 467, 624 S.E.2d at 678. The main tenance log of the In toxilyzer 5000 bears no resemblance to ex parte examinations, the “evil” that the C onfrontation Clause was designed to guard against. Crawford , 541 U.S. at 49. Because the maintenance log is not accusatory and is

4 We recently reaffirmed Michels ’ holding in Jasper v. Commonwealth , 49 Va. App. 749, 644 S.E.2d 406 (2007). In Jasper , we extended Michels ’ holding that “a certification of an out-of-state official regarding an absence of a certain record” is nont estimonial, to hold that “the certification of an in-state official regarding the existence of certain records” is likewise nontestimonial. Id. at 757, 644 S.E.2d at 411 (emphasis in original).- 14 - essentially a business record, we hold that it is not testimonial and, therefore, does not implicate the Sixth Amendment. In sum, we hold that none of the statements that Wimbish complains of in the Certificate of Analysis implicate the Confront ation Clause. We therefore hold that the trial court did not err in admitting the Certificate of Analysis into evidence.
B. The Constitutionality of Code § 18.2-270 Wimbish next argues that the mandatory mi nimum sentencing requirement contained in Code § 18.2-270 violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution because it contains a mandatory presump tion. Code § 18.2-270 states in pertinent part: any person violating any provision of § 18.2-266 shall be guilty of a Class 1 misdemeanor with a mandatory minimum fine of $250. If the person’s blood alcohol level as indicated by the chemical test administered as provided in this article was at least 0.15, but not more than 0.20, he shall be conf ined in jail for an additional mandatory minimum period of five days or, if the level was more than 0.20, for an additional mandatory minimum period of 10 days. Wimbish argues that the statute requires the f act finder to determine whether the accused’s blood alcohol level exceeded the statutory threshold of 0.15 or 0.20 at the time of the offense. From that premise, Wimbish reasons that the statute requires the fact finder to presume that, because an accused’s blood alcohol level exceeded the statutory threshold at the time of testing , it also exceeded the threshold levels at the time of the offense

. That is not the case. The accused’s blood al cohol level at the time of the offense is irrelevant for the purpose of whether or not the enhanced sent ence applies under Code § 18.2-270. For a defendant to be eligible for Code § 18.2-270’s enhanced mandatory sentencing, the Commonwealth must prove two elements: 1) that the accused violated a provision of Code § 18.2-266 and 2) that the accused’s “blood alc ohol level as indicated by the- 15 - chemical test administered as provided in th is article was at leas t 0.15.” Thus, sentencing pursuant to Code § 18.2-270 does not require proof of the accused’s blood alcohol level at the time of the offense. It simply mandates a mini mum sentence if the accused has been convicted of driving while intoxicated and his blood alc ohol level “as indicated by the chemical test” exceeded the threshold level. Therefore, Code § 18.2-270 does not require the fact finder to presume or infer anything. Thus, we hold that Code § 18.2-270 is constitutional and affirm the trial court’s decision to sentence Wimbish to a mandatory term of ten days in jail.
III. Conclusion Based on the foregoing, we hold that the tria l court’s admission of the Certificate of Analysis did not violate the C onfrontation Clause and that Co de § 18.2-270 does not contain an unconstitutional presumption. Therefor e, we affirm Wimbish’s conviction. Affirmed.