IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

KYLE BOHSANCURT,

Petitioner/Appellee,

v.

THE HONORABLE MITCHELL

EISENBERG, Magistrate of the Tucson

City Court,

Respondent,

and

TUCSON CITY PROSECUTOR’S

OFFICE,

Real Party in Interest/Appellant. )

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) 2 CA-CV 2005-0117

DEPARTMENT A

O P I N I O N

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. C20051710

Honorable Barbara Sattler, Judge Pro Tempore

REVERSED AND REMANDED

Law Office of Stephen Paul Barnard, P.C.

By Stephen Paul Barnard Tucson

Attorney for Petitioner/Appellee

FEB 28 2006 

### FILED BY CLERK

COURT OF APPEALS

DIVISION TWO2

Michael G. Rankin, Tucson City Attorney

By Laura Brynwood and William F. Mills

Gary M. Kula, City of Phoenix Public Defender

By Gary M. Kula and Treasure VanDreumel Tucson

Attorneys for Real Party in

Interest/Appellant

Phoenix

Attorneys for Amicus Curiae

City of Phoenix Public Defender’s Office

P E L A N D E R, Chief Judge.

¶1 The state appeals from the superior court’s ruling in a special action in which

the court concluded that maintenance and calibration records for an Intoxilyzer 5000

breath-testing machine are testimonial in nature under Crawford v. Washington

, 541 U.S.

36, 124 S. Ct. 1354 (2004). Based on that conclusion, the court ruled those records are

inadmissible in the underlying criminal case against appellee Kyle Bohsancurt unless he has

an opportunity to confront and cross-examine the author of the records. We hold that the

rec ords do not fall within the purview of C rawford and are admissible under the public

records and business records exceptions to the hear say rule. Therefore, we reverse the

superior court’s ruling and remand the case for further proceedings.

BACKGROUND

¶2 The underlying facts are undisputed. Bohsancurt was cited for driving under

the influence of an intoxicant (DUI) while impaired to the slightest degree in violation of

A.R.S. § 28-1381(A)(1) and for driving or being in actual physical control of a vehicle with

a breath-alcohol concentration of .08 or more within two hours of driving in violation of3

§ 28-1381(A)(2). After those charges were filed in Tucson City Court, Bohsancurt moved

in limine to exclude from evidence the periodic calibr ation and maintenance records

(“quality assurance records” or “QARs”) of the Intoxilyzer 5000 breath-testing device that

had been used to test his breath sample. Under A.R.S. § 28-1323(A)(5), those records are

a necessary foundational predicate for admission of Bohsancurt’s breath test results.

¶3 In his motion, Bohsancurt argued the QARs are inadmissible unless he has an

opportunity to cross-examine the Tucson Police Depart ment (TPD) Crime Laboratory

employee (“QA specialist”) who conducted the calibration and maintenance t ests on the

Intoxilyzer. Without that opportunity, Bohsancurt argued, admission of the QARs will

violate his constitutional rights under the Sixth Amendment’s Confrontation Clause as

explained in Crawford

. The city court magistrate denied Bohsancurt’s motion, finding the

QARs are “non-testimonial” and “not of a nature that was sought to be protected by the

Framers of the Constitution.”

¶4 Bohsancurt then obtained a stay of the proceedings and filed a complaint for

special action in sup erior court. In addition to his C rawford argument, Bohsancurt

contended the QARs also should be excluded because they constitute inadmissible hearsay.

The superior court accepted jurisdiction of t he special action, finding that the complaint

raised a purely legal issue of first impression in Arizona that is likely to recur. The court

concluded that “[u]se of calibration records to lay a foundation for the admission of breath

testing results when a witness is unavailable and the Defendant has not had prior

opportunity to cross-examine the appropriate declarant

. . . violates the Confrontation4

Clause of the Sixth Amendment under C rawford v. Washington .” It further found

Bohsancurt’s hearsay argument “not dispositive” because, under Crawford , “if testimonial

in nature, the evidenc e must comport with the Confrontation Clause, regardless of its

evidentiary label.”

¶5 The state appeals from that ruling. This court has jurisdiction pursuant to

A.R.S. § 12-2101(B) and (E) and Rule 8(a), Ariz. R. P. Spec. Actions, 17B A.R.S.

DISCUSSION

I

¶6 The state argues “[t]he lower court erroneously found that Intoxilyzer 5000

periodic maintenance records are testimonial under Crawford .” That argument challenges

the superior court’s interpretation of Crawford

, a purely legal issue that we review de novo.

See State v. Parks , 211 Ariz. 19, ¶ 23, 116 P.3d 631, 636 (App. 2005) (“Although we

review a trial court’s ruling on the admissibility of evidence under exceptions to the hearsay

rule for abuse of discretion, we review a trial court’s determination of a Confrontation

Clause violation de novo.”); see also State v. Moody , 208 Ariz. 424, ¶ 62, 94 P.3d 1119,

1140 (2004).

¶7 In Crawford

, the Supreme Court attempted to reconcile the inherent conflict

between the Sixth Amendm e nt’s Confrontation Clause and the various exceptions to the

general rule excluding hearsay evidence. The Court overruled Ohio v. Roberts , 448 U.S.

56, 100 S. Ct. 2531, 65 L. E d. 2d 597 (1980), in which it had held that an unavailable

declarant’s “statement is admissible only if it bears adequate ‘indicia of reliability[,]’

. . .5

[ i.e., it] falls within a firmly rooted hearsay excepti on[,] . . . [or has] particularized

guarantees of trustworthiness.” Id. at 66, 100 S. Ct. at 2539, 65 L. Ed. 2d at 608.

¶8 Emphasizing that “[r]eliability is an amorphous

. . . concept,” the Court in

Crawford found the Roberts “framework

. . . so unpredictable that it f ail[ed] to provide

meaningful protection from even core confrontation violations.” C rawford

, 541 U.S. at 62-

63, 124 S. Ct. at 1371. Instead, the Court analyzed the common law and historical context

surrounding the Confrontation Clause and concluded the Framer s had had two main

concerns. Id. at 50, 124 S. Ct. at 1363. First, the Court stated, “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.” I d. Second,

the Court found “that the Framers would not ha ve allowed admission of testimonial

statements of a witness who did not appear at trial unless he was unavailable to testify, and

the defendant had had a prior opportunity for cross-examination.” Id. at 53-54, 124 S. Ct.

at 1365.

¶9 Significantly, the Court in Crawford for the first time distinguished between

“testimonial” and “nontestimonial” evidence for Sixth Amendment purposes based on its

reasoning that the Confrontation Clause “applies to ‘witnesses’ against the accused—in

other words, those who ‘bear testimony.’” Id

. at 51, 124 S. Ct. at 1364, quoting 1 Noah

Webster, An American Dictionary of the En glish Language (1828). As the Court

explained, “‘[t]estimony’

. . . is typically ‘[a] solemn declaration or affirmation made for the

purpose of establishing or proving some fact.’ An accuser who makes a formal statement to6

government officers bears testimony in a sense that a person who makes a casual remark to

an acquaintance does not.” Id.

¶10 The Court adopted an absolute rule when “testimonial” evidence of a witness

who does not appear at trial is involved—regardless of reliability, the evidence is

inadmissible unless the declarant is unavailable and the defendant had a prior opportunity

to cross-examine him or her. Id

. at 68, 124 S. Ct. at 1374. Although the Court decided to

“leave for another day any effort to spell out a comprehensive definition of ‘testimonial,’”

id. , it did describe a “core class of ‘testimonial’ statements,” including,

“ ex parte in-court testimony or its functional equivalent—that

is, material such as affidavits, custodial examinations, prior

testimony that the defendant was unable to cross-examine, or

similar pretrial statements that dec larants would reasonably

expect to be used prosecutorially, extrajudicial statements .

. . contained in formalized testimonial materials, such as affidavits,

depositions, prior testimony, or confessions, stat e ments that

were made under circumstances which would lead an objective

witness reas onably to believe that the statement would be

available for use at a later trial,”

. . . [and] [s]tatements taken by

police officers in the course of interrogations.

Id

. at 51-52, 124 S. Ct. at 1364, quoting briefs in case and White v. Illinois

, 502 U.S. 346,

365, 112 S. Ct. 736, 747, 116 L. Ed. 2d 848, 865 (1992) (Thomas, J., concurring in part and

concurring in judgment).

¶11 The Court held that the “testimonial” characterization “applies at a minimum

to prior testimony at a preliminary hearing, before a grand jury, or at a former trial and to1 The evide nce at issue in C rawford itself—a tape-recorded statement by the

defendant’s wife to the police—clearly fell within that category. During a police

interrogation, the wife (an eyewitness to the crimes) made statements that did not support

her husband’s self-defense claim against charges of assault and attempted murder. 541 U.S.

at 38-41, 124 S. Ct. at 1356-58. When the wife did not testify at trial because of the state

marital privilege, the prosecution was permitted to introduce the wife’s state m ents to the

police under the state’s statements-against-interest exception to the hearsay rule. I d

. at 40,

124 S. Ct. at 1357-58. The Court in C rawford specifically held that admission of the wife’s

“testimonial statement against [her husband/d efendant], despite the fact that he had no

opportunity to cross-examine her,” violated the Confrontation Clause. I d

. at 68, 124 S. Ct.

at 1374.

7 police interrogations,” 1 reasoning that “[t]hese are the modern practices with closest kinship

to the abuses at which the Confron tation Clause was directed.” I d. at 68, 124 S. Ct. at

1374. The Court provid ed further guidance by stating, “Most of the hearsay exceptions

covered statements that by their nature were not testimonial—for example, business records

or statements in furtherance of a conspiracy.” Id. at 56, 124 S. Ct. at 1367. Finally, with

respect to non testimonial hearsay, the Court explained “it is wholly consistent with the

Fra mers’ design to afford the States flexibility in their development of hearsay law,”

including “an approach that exempt[s] such statements from Confrontation Clause scrutiny

altogether.” Id. at 68, 124 S. Ct. at 1374.

II

¶12 We now turn to the question of whether we should extend the Confrontation

Clause protection to QARs because they supposedly are “testimonial” evidence and,

therefore, inadmissible under Crawford absent an opportuni ty to cross-examine their author.

The documents in question are created pursuant to R9-14-404 of the Arizona Administrative2 Both parties state QARs were previously mandated by the Arizona Department of

Health Services but have since become the subject of Department of Public Safety rules. But

R9-14-404, Ariz. Admin. Code, falls under the title on “Health Services,” and neither party

cites any change to that. In addition, the title in the code on “Public Safety” does not reflect

any change. Nonetheless, the focus of our analysis is not dependent on which state agency

mandates the QARs, but rather, on which state agency actually conducts the calibration tests

and prepares the records and on the essential purpose for which the records are prepared.

That the QA specialists are employed by TPD is not disputed.

8 Code, 2 which requires “[l]aw enforcement agencies or individuals

. . . who conduct alcohol

concentration determinations by means of breath-testing devices [to] implement a quality

assurance program

conducted by a quality assurance specialist.” The rule also directs

“[c]alibration checks of breath testing devices . . . [every] 31 days . . . [and r]ecords of

quality assurance testing, calibration checks, device adjustments, and any maintenance for

each device in use.” Ariz. Admin. Code R9-14-404(A)(3), (6).

¶13 Based on those rules, quality assurance testing is performed, and the resultant

records are created by criminalists employed by TPD. The QARs are then used by the state

in DUI prosecutions as foundation for admitting the defendant’s breath test results. S ee

A.R.S. § 28-1323. The applicable statute provides that breath tests conducted on DUI

suspects “are admissible as evidence in any trial” as long as five “foundational requirements”

are met, the last of which is:

The device used to conduct the test was in proper

operating condition. Records of periodic maintenance that

show that the device was in proper operating condition at a

time before and after the test are admissible in any

proceeding as prima facie evidence that the device was in

proper operating condition at the time of the test. The records

are public records.9

§ 28-1323(A)(5) (emphasis added).

¶14 As the state points out, the QARs “contain preprinted standard language, and

within that st andard language, the criminalist fills in the blanks. The blanks include

information such as the criminalist’s name, the crime laboratory agency, and the date and

time of the function and accuracy tests.” Based on the content of QARs, the state argues

those reports “are

. . . neither of the two clearly delineated types of [testimonial] statements

[discussed in Crawfor d ] : prior e x parte testimony from a preliminary hearing, []or

statements taken by police during interrogation.” Therefore, the state posits, “[t]he question

necessarily becomes whether the records are of the more ambiguous type of ‘testimonial’

statement” mentioned but n ot defined in C rawford

, which the state urges they are not.

Although the QARs are introduced in DUI cases to satisfy the fifth foundational requirement

under § 28-1323, the state argues the information contained in those maintenance records

“is not testimonial in nature, but is instead the transference of data from an Intoxilyzer

5000 printout onto a preprinted collection form.”

¶15 Since Crawford was decided, other jurisdictions have grappled with the

question of what constitutes “testimonial” evidence in cases like this in which the evidence

at issue does not fit neatly into the “core class” discussed by the Supreme Court. A clear

majority of courts that have addressed the admissibility of similar quality assurance records

for breath-testing machines have held this specific type of evidence is not testimonial. See,

e.g., Rackoff v. State , 621 S.E.2d 841, 845 (Ga. Ct. App. 2005); Rembusch v. State , 836

N.E.2d 979, 982 (Ind. Ct. App. 2005); Napier v. State

, 820 N.E.2d 144, 149-50 (Ind. Ct.10

App. 2005); State v. Carter

, 114 P.3d 1001, ¶ 32 (Mont. 2005); State v. Godshalk

, 885

A.2d 969, 973 (N.J. Super. Ct. Law Div. 2005); State v. Dedman

, 102 P.3d 628, 636 (N.M.

2004); People v. Kanhai

, 797 N.Y.S.2d 870, 875 (N.Y. Crim. Ct. 2005); State v. Norman

,

125 P.3d 15, 18 (Or. Ct. App. 2005); Luginbyhl v. Commonwealth , 618 S.E.2d 347, 355

(Va. Ct. App. 2005).

¶16 In many of those cases, courts found th at calibration records are made and

maintained in the ordinary course of business and, therefore, fall within a clearly delineated

exception to C rawford

—business records. S ee Crawford

, 541 U.S. at 55, 124 S. Ct. at

1367 (“Most of the hearsay exceptions cov ered statements that by their nature were not

testimonial—for example, business records

. . . .”); Godshalk

, 885 A.2d at 973 (inspection

certificates are business records that Crawford “specifically excluded

. . . from [its] scope”);

Kanhai , 797 N.Y.S.2d at 874-75 (maintenance records were not testimonial because they

were business records and because they were not made specifically for the case at issue);

Norman

, 125 P.3d at 19 (documents supporting accuracy of Intoxilyzer machine “are more

akin to hearsay statements that were not considered testimonial in nature at common law,

such as public or business records”).

¶17 The courts in the foregoing cases looked to legislation or administrative rules,

similar to R9-14-404, that require the compila tion of records of regular maintenance for

various breath-testing devices. Based on such requirements, courts have found the

maintenance records are not created in anticipation of litigation, but rather, for the purpose

of complying with rules and assuring the accuracy of testing devices, which is a regular3 Under Rule 803(6), Ariz. R. Evid., 17A A.R.S., a document qualifies as a business

record, and is excepted from the hearsay rule even when the declarant is available as a

witness, if the document was:

(a) Made at or near the time of the underlying event,

(b) by, or from information transmitted by, a person

with first hand knowledge acquired in the course of a regularly

conducted business activity,

(c) made and kept entirely in the co urse of that

regularly conducted business activity,

(d) pursuant to a regular practice of that business

activity; and

(e) all the above are shown by the testimony of the

custodian or other qualified witness, or by certification . . . .

The rule further provides:

However, such evid ence shall not be admissible if the

source of information or the method or circumstances of

preparation indicate a lack of trustworthiness . . . .

The term “business” as used in this paragraph includes

business, institution, association, profession, occupation, and

calling of every kind, whether or not conducted for profit.

11 course of business. S ee Rackoff

, 621 S.E.2d at 845. Further, co urts have concluded the

records meet the other requirements of a business record in that the technician who conducts

th e calibration tests records the results at or near the time the testing is done and has

firsthand knowledge of the information he or she is recording. 3 S ee Kanhai

, 797 N.Y.S.2d

at 872-73.12

¶18 In our view, similar reasoning applies here. Pursuant to R9-14-404, the

Intoxilyzer 5000 machines must be tested and the results recorded every thirty-one days,

regardless of whether any particular machine is used in connection with a DUI arrest. In

o ther words, regardless of litigation, the QARs must be kept in the ordinary cou rse of

business. Bohsancurt asserts those records constitute “a declaration or affirmation for

proving

. . . the fact that the periodic maintenance was conducted, and the fact that the

indicated calibration test results, et al[.], were obtained.” That that may be true and that the

records may subsequently be used in DUI prosecutions, however, does not preclude their

qualifying as business records. See Kanhai , 797 N.Y.S.2d at 874.

¶19 Still, Bohsancurt argues that, even if kept in the regular course of business,

the QARs cannot qualify as business records because their “method or circumstances of

preparation indicate a lack of trustworthiness.” Ariz. R. Evid. 803(6). He contends bias

exists because “the QAR’s are produced by the State for the State’s prosecution of the

defendant.” Although the breath-testing machines are calibrated by criminalists employed

by TPD, that fact alone is not sufficient to establish bias or inherent untrustworthiness.

¶20 We are persuaded by the reasoning of ot her courts that, because the

maintenance records contain factual memorializations generated by a scientific machine, see

Kanhai

, 797 N.Y.S.2d at 874, and the records are prepared by technicians who are not

proxies of police investigators and “have no demonst rable interest in whether the

certifications produce evidence that is favorable or adverse to a particular defendant,”

Nor man , 125 P.3d at 19, the records do not lack trustworthiness. That the calibration4 At oral argument, Bohsancurt cited Palmer v. Hoffman , 318 U.S. 109, 114, 63 S.

Ct. 477, 481, 87 L. Ed. 645 (1943), for the proposition that a repor t should not be

admissible as a business record when it is “calculated for use essentially in the court” and

its “primary utility is in litigating” rather than “for the systematic conduct of the enterprise.”

Even had Palmer been timely cited, however, “[w]hat the case has come to stand for is that

a record otherwise meeting the requirements of th[e] exception [in Rule 803(8)(B)] ought

not be admitted if there was a s ubstantial motive to misrepresent when the report was

prepared.” Joseph M. Livermore, et al., Law of Evidence § 803.6, at 365 (4th ed. 2000);

see Mitchell v. Gamble

, 207 Ariz. 364, ¶ 16, 86 P.3d 944, 949-50 (App. 2001) (“Generally,

issues and arguments raised for the first time at oral argument on appeal are untimely and

deemed waived.”). The record here does not reflect any such motive on the part of QA

specialists when the Intoxilyzer calibration checks are performed or the QARs prepared.

5 In its amicus curiae brief, the Phoenix Public Defender’s Office challenges our

conclusion, relying on United States v. Sims

, 617 F.2d 1371, 1377 (9th Cir. 1980). We

address that argument below. See ¶¶ 36-41, infra

.

13 records contain no opinion by the technicians further supports the conclusion that they are

trustworthy. Clearly, regardless of any preconceived bias, an individual technician tests the

machines and prepares all Q ARs in the same fashion. The QARs contain the results of

machine tests that cannot be influenced by one’s point of view.

¶21 We conclude that the QARs qualify as business records under Rule 803(6),

Ariz. R. Evid. 4 And, although the legislature has characterized the maintenance records as

“public records,” § 28-1323(A)(5), that classification does not preclude them from a l so

being business records. The essence of a public record is that it is created by a public

agency. S ee State ex rel. McDougall v. Johnson , 181 Ariz. 404, 409, 891 P.2d 871, 876

(App. 1994). But, when a public agent keeps records in the ordinary course of business of

his or her employer, the records may still constitute business records. 5 S ee State v. Nez

, 950

P. 2d 1289, 1294-95 (Idaho Ct. App. 1997) (probation records admissible under either14

public records or business records exception); State v. Rich

, 35 9 S.E.2d 281, 281 (S.C.

1987) (police fingerprint records admissible as either business records or public records).

¶22 In addition to finding that calibratio n records qualify as business records, other

courts have permitted the admission of such records, without testimony from their preparer,

by concluding that the evidence set forth in the records is not “against” any defendant. S ee

Crawford

, 541 U.S. at 51, 124 S. Ct. at 1364 (the Confront ation Clause “applies to

‘witnesses’ against the accused”); Rackoff

, 621 S.E.2d at 845 (breath-testing inspection

certificates not testimonial because author of suc h certificates does not bear testimony

against the defendant); C a rter

, 114 P.3d 1001, ¶ 32 (“Certification reports are

nontestimonial in nature in that they are foundational, rather than substantive or

accusatory.”); Green v. DeMarco

, No. 2005/09951, 2005 WL 3421707, *11 (N.Y. Sup. Ct.

Dec. 12, 2005) (testimonial evidence involves only evidence that is inculpatory); see also

Michels v. Commonwealth

, 624 S.E.2d 675, 678 (Va. Ct. App. 2006) (adopting view of

other courts that “documents establishing the existence or absence of some objective fact,

rather than detailing the criminal wrongdoing of the defendant, are not ‘testimonial’”).

¶23 The reasoning and conclusions of those courts make practical sense in light

of the historical protections Crawford sought to uphold. The Court explored the historical

practice of justices of the peace or other court officials questioning witnesses, ex parte

, and

then merely reading the witnesses’ statements into evidence. S ee Crawford

, 541 U.S. at 43,

124 S. Ct. at 1359. The Court noted that those types of civil law “pretrial examinations

became routine

. . . during the reign of Queen Mary i n the 16th century,” i d. at 43, 12415

S. Ct. at 1360, and were the type of historical vice the Fram ers had intended to protect

against. The Court further explained that “[j]ustices of the peace [who] conduct[ed]

examinations

. . . were not magistrates as we understand that office today, but had an

essentially investigative and prosecutorial function.” Id. at 53, 124 S. Ct. at 1365.

¶24 That the historical concern centered on statements taken by officials who were

prosecuting or investigating criminal matters supports an inference that only inculpatory

evidence required cross-examination. As did the city court magistrate in this case, several

courts have concluded that the type of evidence contained in calibration records—primarily

abstract data output from a machine with no relationship to a particular defendant—is not

the sort of evidence with which the Framers were concerned. S ee Napier

, 820 N.E.2d at

149-50 (“[I]t is our view that the inspection

. . . certifications are simply not included in the

class of evidence

. . . identified by the Crawford court as ‘the modern practices with closest

kinship to the abuses at which the Confrontation Clause wa s directed.’”), q uoting Crawford

,

541 U.S. at 68, 124 S. Ct. at 1374; Rembusch

, 836 N.E.2d at 982 (maintenance records not

within class of evidence Crawford contemplated as testimonial); Luginbyhl

, 618 S.E.2d at

355 (“Guided by

. . . Crawford and the historical context in which it was rooted,

. . . we

hold that the statements in the breath test certificate relating to the machine’s good working

order . . . are not testimonial statements.”).

¶25 In fac t, several of the cases Bohsancurt cites, which hold that various

laboratory reports are testimonial, involved reports that were inculpatory in a way that6 The superior court cited, and Bohsancurt relies heavi ly on, S hiver v. State

, 900

So. 2d 615 (Fla. Dist. Ct. App. 2005). S ee also Belvin v. State

, No. 4D04-4235, 2005 WL

1336497, at **4-5 (Fla. Dist. Ct. App. June 8, 2005). Although at first blush it appears

Shiver dealt with records similar to Arizona’s QARs, the Florida records actually included

breath-test results of the individual defendant in addition to a section in which the officer

who conducted the breath-test had certified that another officer had calibrated and checked

t he machine. 900 So. 2d at 618-19. Those facts are clearly distinguishable from those

presented here. The records at issue in Shiver contained evidence against the defendant.

Further, the Florida records would not necessarily qualify as business records because the

calibration results were not recorded by someone with firsthand knowledge, nor does the

case reflect that the records were made from information transmitted by a person with

firsthand knowledge. See Ariz. R. Evid. 803(6)(b), 17A A.R.S.

7 Compare Perkins v. State

, 897 So. 2d 457, 464 (Ala. Crim. App. 2004) (in case

decided on same day as Smit h , same court held that autopsy reports generally are

nontestimonial business records).

8 Belvin has not been released for publication in perman ent law reports. “Until

released it is subject to revision or withdrawal.” 2005 WL 1336497, at *1.

16 calibration and maintenance records are not. 6 See State v. Smith

, 898 So. 2d 907, 915-17

(Ala. Crim. App. 2004) (autopsy report of victim found testimonial, when cause of death

was “a crucial element of the charge,” because report stated death was caused by

asphyxiation by use of plastic bag over victim’s head and defendant, who admitted having

killed victim in self-defense, claimed de ath was caused by blows to the head by a bat); 7

Belvin v. State

, No. 4D04-4235, 2005 WL 13 36497, **1, 6 (Fla. Dist. Ct. App. June 8,

2005) ( C rawford requires officer who actually administers defendant’s breath test to be

available at trial); 8 City of Las Vegas v. Walsh

, 124 P.3d 203, 207-08 (Nev. 2005) (nurse’s

a ffidavit describing conditions under which she had drawn blood from the de fendant

considered tes timonial); P eople v. Rogers

, 780 N.Y.S.2d 393, 396-97 (2004) (results of

blood test of victim of crime considered testimonial, when state requested test to establish9 This case does not require us to reach or decide the specific issues addressed in those

cases.

17 victim’s intoxication and lack of consent in rape prosecution). In contrast to the types of

reports involved in those cases, the recorded results of calibration testing in the abstract do

not relate to any specific defendant or particular case.

¶26 Moreo ver, some courts have found other types of laboratory reports, even

though related to specific defendants or victims, are not testimonial under Crawford. See

People v. Johnson

, 18 Cal. Rptr. 3d 230, 233 (Ct. App. 2004) (laboratory report analyzing

rock cocaine that defendant had been seen selling not testimonial under Crawford because

it “was not a substitute for live testimony,” but “was routine doc umentary evidence”);

Commonwealth v. Verde , 827 N.E.2d 701, 705-06 (Mass. 2005) (laboratory report that

detailed weight of cocaine found in defendant’s possessi on not testimonial because

“[c]ertificates of chemical analysis are neither discretionary nor based on opinion; rather,

they merely state the results of a well-recognized scientific test determining the composition

and quantity of a substance”); Moreno Denoso v. Sta te , 156 S.W.3d 166, 182 (Tex. Ct.

App. 2005) (autopsy report describing victim’s physical characteristics at death and cause

of death not testimonial because it “ d[id] not fall within the categories of testimonial

evidence described in Crawford ” as “[i]t [wa]s not prior testimony at a preliminary hearing,

before a grand jury, or at a former trial”). 9

¶27 Arguably, report s analyzing evidence from crime victims or drug samples

associated with a specific defendant are actually linked to a specific case a nd are likely18

inculpatory. Nonetheless, as noted above, courts have found those types of reports do not

fall within the Crawford Court’s description of evils the Confrontation Clause was intended

to avoid. In our view, those authorities support our conclusion that QARs, which are

business records created from objective, scientific data and which do not relate to any

particular defendant or case, are n ot testimonial. If the Court in C rawford intended its

description of “testimonial” evidence to include the types of maintenance records involved

here, it certainly did not expressly say so and, absent more explicit direction from that Court

or our supreme court, we are left with no more than “var ious levels of abstraction,” an

insufficient basis for finding any Sixth Amendment violation. C rawford

, 541 U.S. at 52, 124

S. Ct. at 1364.

¶28 We are not persuaded by Bohsancurt’s arguments that the seminal issue under

Crawford is whether the declarant can reasonably anticipate that his or her statement will

likely be used at trial. As noted earlier, the Court’s “core class of ‘testimonial’ statements”

included “‘statements that were made under circumstances which would lead an objective

witness reasonably to believe that the statement would be available for use at a later trial.’”

Id

. at 51-52, 124 S. Ct. at 1364, quoting Brief for Nat’l Ass’n of Crim. Defense Lawyers et

al. as Amici Curiae at 3. Citing the legislative history of § 28-1323(5), Bohsancurt argues

the “very purpose [of the subsection] is to provide a method in introducing necessary

testimony as to the accuracy of the machine with[out] the need for live testimony.”

¶29 We agree with Bohsancurt that QARs undoubtedly are created with an

understanding that they may b e used in court to verify the working conditions of19

Intoxilyzers. But we do not think that abstract possibility renders QARs testimonial. The

Court in Crawford did not specifically emphasize a ny of its stated “formulations” as

determinativ

e. 541 U.S. at 51-52, 124 S. Ct. at 1364. Further, in our view, the above

formulation, as explained in Crawford , was directed at out-of-court statements aimed at a

particular defendant or related to a specific case. This inference logically follows from the

Court’s discus sion of the historical evils the Confrontation Clause sought to

address—testimony obtained by court officials acting in prosecutorial or investigative roles.

See id

. at 53, 124 S. Ct. at 1365. Unless or until the Court states otherwise, it is not our

prerogative to extend the Court’s holding.

¶30 Bohsancurt relies on U nited States v. Cromer

, 389 F.3d 662 (6th Cir. 2004),

for the proposition that a declarant’s knowledge that a statement may be used at trial is t he

dispositive issue under Crawford . But that case supports our conclusion that Crawford is

concerned with out-of-court statements that are related to specific cases. The court in

Cromer stated, “The proper inquiry [under Crawford ] is whether the declarant intends to

bear testimony against the a ccused .” I d. at 675 (emphasis added). The court further

explained, “That intent, in turn, may be determined by querying wh ether a reasonable

person in the declarant’s position would anticipate his statement being used against the

accused in investigating and prosecuting the crime.” I d. In other words, the court essentially

concluded that, when a declarant intends to bear testimony against a specific person or is

aware that the declarant’s statement could be used against a defendant in a particular case,10 Bohsancurt cites People v. Orpin

, 796 N.Y.S.2d 512 (N.Y. Justice Ct. 2005), in

which the court ruled that calibration records are testimonial because, although they qualify

as business records, they simultaneously are created by law enforcement agents who expect

the documents will be used in later prosecutions. S ee id

. at 517 (“[W]hat matters under the

Crawford analysis is that the declarant knows tha t the statement will be used in a

prosecution[; o]nce this test is satisfied, the Confrontation Clause is implicated.

. . .”). New

York law, however, allows “the discretionary pow e r of [a] supreme court to entertain an

action for declaratory relief that, in effect, collaterally attacks a criminal court’s

interlocutory ruling in favor of a defendant.” Green v. DeMarco

, No. 2005/09951, 2005

WL 3421707, at *1 (N.Y. Sup. C t. Dec. 12, 2005). The O rpin ruling was collaterally

attacked pursuant to that rule, and the DeMarco court granted the district attorney’s request

and declared that calibration records are admissible and not a violation of Crawford

. See

2005 WL 3421707, at *12. The D eMarco court also stated that, in New York, “except for

Orpin , there are no other reported decisions excluding this type of documentary evidence

on Crawford grounds.” Id. at *12.

11 A QA specialist signs and attaches to the forms associated with testing a document

that states: “I hereby certify that the above and foregoing is a true and correct copy of the

record of periodic maintenance and calibration checks for the Intoxilyzer Model 5000 , Serial

Number [#####], TPD No. [##] , maintained by the Tucson Police Department Crime

20 then that intent or knowledge is a determinative factor in finding the declarant’s out-of-court

statement testimonial.

¶31 That cannot be said, however, with respect to the QA specialists who prepare

QARs. As noted earlier, the QARs are mandated by administrative rule and created

regardless of whether the machine to which the QAR relates is ever used or whether a single

defendant is arrested. Moreover, the record does not reflect that a QA specialist has any way

of knowing which records may be used in litigation and which will not or that a specialist

necessarily intends to bear testimony against any specific defendant. 10

¶32 We also find unpersuasive Bohsancurt’s argument that the mere existence of

an affidavit renders the QARs testimonial. 11 Other courts have dealt with calibration recordsLaboratory, pursuant to the requirements of the Arizona Department of Health Services.”

21 that contain affidavits and have concluded, because the affidavit contains no testimony

against any particular defendant, and indeed, no reference to any person at all, the affidavit

does not render the calibration records testimonial. S ee Napier

, 820 N.E.2d at 149

(affidavit is not testimonial because information within it “does not pertain to the issue of

guilt”); Luginbyhl

, 618 S.E.2d at 354 (officer’s statements in affidavit were not testimonial

because they did “not accuse [the defendant] of any wrongdoing”).

¶33 Further, although the Court in Crawford cited affidavits among its “various

formulations” of testimonial material, the Court apparently mentioned affidavits only in two

specific contexts, neither of which is presented here. The first type of affidavit the Court

considered testi monial was one that is the functional equivalent of ex parte, in-court

testimony. S ee Crawford

, 541 U.S. at 51, 124 S. Ct. at 1364 (“Various formulations of this

core class of ‘testimonial’ statements exist: [including] ‘ ex parte in-court testimony or its

functional equivalent—that is, material such as affidavits’

. . . .”), quoting Brief of Petitioner

at 23. The ex parte statements the Court cited as offensive to the Sixth Amendment included

investigative statements by magistrates who acted prosecutorially or statements by Lord

Cobham, Sir Walter Raleigh’s alleged accomplice. Lord Cobham implicated Raleigh in an

examination before an ex parte council and in a letter. See id. at 44, 124 S. Ct. at 1360.

The affidavits that accompany QARs, however, do not resemble a sworn memorialization

of statements elicited ex parte to inculpate a defendant.12 Of course, nothing would prevent a defendant such as Bohsancurt from obtaining

and serving a subpoena on a QA specialist, compelling his or her attendance at trial and

subjecting the specialist to full examination on whatever QARs are relevant to the case.

22 ¶34 The se cond context in which the Court referred to affidavits was “‘extrajudicial

statements

. . . contained in formalized testimonial materials, such as affidavits, depositions,

prior testimony, or

confessions.’” I

d

. at 51-52, 124 S. Ct. at 1364, quoting White v.

Illinois

, 502 U.S. 346, 365, 112 S. Ct. 736, 747, 116 L. Ed. 2d 848, 865 (1992) (Thomas,

J., concurring in part and concurring in judgment). As far as we can tell, the Court was

me r ely describing various modes of civil law practice that it had addressed and criticized

earlier. Again, the affidavits here do not resemble those with which the Court expressed

concern. They are not created to formalize statements made at the behest of a party to

document specific facts of the case. Rather, they are signed and completed in the ordinary

course of business, solely in connection with the QARs themselves, and have no relationship

to any specific case or defendant.

¶35 Based on our conclusions that QARs are business records and do not contain

evidence against individual defendants such as Bohsancurt, we hol d the QARs are not

testimonial under Crawford . Therefore, the Sixth Amendment does not bar admission of

the QARs even though the QA specialist who prepared them is not present in court or

subject to cross-examination. 12

III

¶36 Although we have determined that the QARs qualify as business records and

fall within that exception to the hearsay rule, we must address another hearsay argument23

raised by Bohsancurt and amicus curiae. Quoting U nited States v. Sims , 617 F.2d 1371,

1377 (9th Cir. 1980), amicus argues the QARs are not business records because the “plain

language of [Rule] 803(8)[, Ariz. R. Evid., the public records hearsay exception] makes it

abundantly clear that it is the rule which covers reports made by law enforcement

personnel.” Rule 803 states:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(8) . . . [u]nless the sources of information or other

circumstances indicate lack of trustworthiness, records, reports,

statements, or data compilations, in any form, of public offices

or agencies, setting forth . . . (B) matters observed pursuant to

a duty imposed by law as to which matters there was a duty to

report, excluding, however, in criminal cases matters observed

by police officers and other law enforcement personnel . . . .

Bohsancurt and amicus argue the QARs are not admissible as public records because they

include “matters observed by . . . law enforcement personnel.”

¶37 It is generally recognized that records excluded by Rule 803(8)(B) cannot be

admitted through the “back door” as a business record. S ee United States v. Cain

, 615 F.2d

380, 382 (5th Cir. 1980) (“[S]tatements inadmissible as public agency reports under Rule

803(8) may not be received merely because they satisfy Rule 803(6)[;]

. . . section (6) does

not open a back door for evidence excluded by section (8).”). But it also is clear that a

document admissible as a public record may likewise be characterized as a business record.

See Nez

, 950 P.2d at 1294-9 5; Rich , 359 S.E.2d at 281. Therefore, we must determine

whether the QARs, although statutorily c h aracterized as public records under § 28-

1323(A)(5), are nonetheless inadmissible under Rule 803(8)(B).24

¶38 Bohsancurt cites United States v. Oates

, 560 F.2d 45 (2d Cir. 1977), in which

the court concluded that chemists of the United States Customs Service were law

enforceme n t personnel and, therefore, that their reports could not be admitted under the

public records exception. I d. at 68. In S tate v. Best

, 146 Ariz. 1, 703 P.2d 548 (App.

1985), however, this court foll owed the lead of several circuit courts in rejecting O ates

,

finding the “law enforcement personnel” exclusion in Rule 803(8)(B) is primarily aimed at

observations made by police officers in adversarial roles, for example, when officers are

investigating crime scenes or apprehending suspects. In B est

, thi s court ruled that a

laboratory report by a deceased fingerprint examiner that detailed w here particular

fingerprints had been lifted was admissible and not excluded under Rule 803(8)(B). 146

Ariz. at 4, 703 P.2d at 551. We stated:

[L]ifting and recording is, for a fingerprint examiner, the type of

routine daily task that has always been thought to be reliably

done under both the business and official records exceptions to

the hearsay rule[; t]he adversarial, co nfrontational risk of

misperception and misrecording present at an arrest of a

criminal at the scene of the crime is about as far removed from

this routine exercise in a poli ce laboratory as it is possible to

imagine.

Id

.

¶39 As noted, Best is consistent with decisions of other courts that have scrutinized

and severely criticized Oates

. S ee United States v. Wilmer

, 799 F.2d 495, 500-01 (9th Cir.

1986) (expressly rejecting the Oates court’s reasoning and conc luding “calibration

certificate was admissible under Rule 803(8)(B)” because “the exclusionary provisions of

[that rule] were intended to apply to observations made by law enforcement officials at the13 See also United States v. Rosa

, 11 F.3 d 315, 332-33 (2d Cir. 1993)

(“Notwithstanding the breadth of certain dicta in Oates

, we are not persuaded that the term

‘law enforcement pe rsonnel’ as used in Rule 803(8)(B) should be read to encompass

empl oyees of the Medical Examiner’s Office. [T]he . . . limitation in clause (B) was the

result of Congr essional discussion that focused exclusively on ‘police officers,’ and

‘accuser[s],’ and ‘adversari[es],’ and there was no suggestion that the amendment to clause

(B) was meant to limit the admissibility of public reports in criminal cases

. . . .”) (second

and third alterations in R osa ), quoting S. Rep. No. 1277, 93d Cong., 2d Sess. (1974),

reprinted in 1794 U.S.C.C.A.N. 7051.

25 scene of a crime or the apprehension of the accused and not ‘records of routine,

nonadversarial mat ters’ made in a nonadversarial setting”), q uoting United States v. Orozco

,

590 F.2d 789, 793 (9th Cir. 1979); see also United States v. Hayes , 861 F.2d 1225, 1229

(10th Cir. 1989) (“ Oates has been criticized by both courts and commentators as an unduly

broad interpretation of Rule 803(8).”); United States v. Metzger

, 778 F.2d 1195, 1202 (6th

Cir. 1985) (“[W]e now join the Second, Ninth and Eleventh Circuits in [refusing to apply]

the restriction [in Oates ].”). 13

¶40 Amicus cites State v. Meza , 203 Ariz. 50, 50 P.3d 407 (App. 2002), for the

proposition that criminalists who do calibration testing should be considered “law

enforcement personnel” and, therefore, that the QARs fall within R u le 803(8)(B)’s

exclusion. But that case makes clear “‘a law enforcement agency i nvestigating a criminal

action operates as an arm of the prosecutor.’” 203 Ariz. 50, ¶ 21, 50 P.3d at 412 (emphasis

added), quoting Carpenter v. Superior Court

, 176 Ariz. 486, 490, 862 P.2d 246, 250 (App.

1993). Therefore, Meza is consistent with Best and with the majority of circuit courts and

does not support the inference that any report generated by pub lic safety employees is

excluded under Rule 803(8)(B).26

¶41 We do not equate the calibration testing and reporting by QA specialists with

the type of “obser[vations] by police officers and other law enforcement personnel” that the

exclusion in Rule 803(8)(B) addresses. S ee Wilmer

, 799 F.2d at 500-01. Rather, the QARs

are more analogous to the type of report generated in Best

. Calibration testing and recording

is a type of “routine daily task” that is “far removed” from any concerns associated with the

adversarial circumstances surrounding investigations or arrests. Best , 146 Ariz. at 4, 703

P.2d at 551. Because the QA specialists who calibrate the Intoxilyzers and record the

results are not investigating a particular criminal matter when they perform that function, the

QARs qualify as both public records and business records—both recognized exceptions to

the general exclusion of hearsay evidence. Accordingly, the superior court erred in reversing

the city court magistrate’s denial of Bohsancurt’s motion in limine.

DISPOSITION

¶42 The ruling of the superi or court is reversed, and the case is remanded for

further proceedings consistent with this decision.

_ ___________________ ________________ JOHN PELANDER, Chief Judge

CONCURRING:

____________________________________ JOSEPH W. HOWARD, Presiding Judge27

____________________________________ GARYE L. VÁSQUEZ, Judge