State v. Rafeh ( 2017 )

No. 26 May 4, 2017 423
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
DOROTHY ELIZABETH RAFEH,
aka Dorothy Elizabeth Barnett,
Petitioner on Review.
(CC 15CR05982; CA A159531; SC S064084)
On review from the Court of Appeals.*
Argued and submitted January 13, 2017.
John Evans, Deputy Public Defender, Salem, argued the
cause and filed the brief for petitioner on review. Also on the
brief was Ernest G. Lannet, Chief Defender, Office of Public
Defense Services.
Joanna L. Jenkins, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Brewer, Nakamoto, and Flynn, Justices.**
KISTLER, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
______________
** On appeal from Multnomah County Circuit Court, John A. Wittmayer,
Judge. Order granting summary affirmance, dated April 13, 2016.
**  Baldwin, J., retired March 31, 2017, and did not participate in the decision
of this case.
424 State v. Rafeh
Case Summary: At defendant’s trial for driving while suspended (DWS),
defendant argued that the federal Confrontation Clause prohibits the admission
of an earlier certification that defendant had been given notice that the state
intended to suspend her driver’s license. The trial court admitted the certifica-
tion over defendant’s objection, and the jury found her guilty of DWS. The court of
appeals affirmed the resulting judgment without opinion. Held: (1) to qualify as
a testimonial statement under the federal Confrontation Clause, the statement
must be made with the primary purpose of creating evidence for a criminal pros-
ecution; (2) the primary purpose of the certification in this case was to confirm
to DMV that the administrative hearing could go forward because defendant had
received constitutionally required notice that her license was subject to suspen-
sion unless she requested an administrative hearing.
The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.
Cite as 361 Or 423 (2017) 425
KISTLER, J.
In 2012, the Driver and Motor Vehicle Services
Division (DMV) of the Department of Transportation sus-
pended defendant’s driver’s license for three years for refusing
to submit voluntarily to a blood alcohol test. Approximately
two and one-half years later, defendant was stopped while
driving without a license, and the state charged her with
driving while suspended (DWS). See ORS 811.182 (defining
that crime). The question that this case presents is whether
the federal Confrontation Clause prohibits the admission, in
defendant’s DWS trial, of an earlier certification that defen-
dant had been given notice that the state intended to sus-
pend her driver’s license.1 The trial court admitted the cer-
tification over defendant’s objection, and the jury found her
guilty of DWS. The Court of Appeals summarily affirmed
the resulting judgment. Having allowed defendant’s petition
for review, we now affirm the Court of Appeals decision and
the trial court’s judgment.
Before turning to the facts of this case, we set out the
statutory framework under which this issue arises. When
an officer stops a person for driving under the influence of
intoxicants, two consequences can flow from the stop. One is
criminal; the other, civil. If the officer has probable cause to
believe that the person has been driving under the influence
of intoxicants (DUII), the officer can arrest the person for
that offense and ask the person to take a breath or blood
alcohol test. ORS 813.100(1). Depending on the results of
those tests, the state may initiate a criminal prosecution for
DUII. See ORS 813.010 (defining that crime).
The other consequence is civil. Every person who
operates a motor vehicle on the state highways impliedly
consents to a breath or blood test to determine the person’s
blood alcohol content if the person is arrested for DUII. ORS
813.100(1). A person who is arrested for DUII can always
refuse to take a breath or blood alcohol test. ORS 813.100(2).
However, doing so can result in the person’s driver’s license
being suspended administratively pursuant to ORS 813.410.
1
The Confrontation Clause of the Sixth Amendment provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right * * * to be confronted with
the witnesses against him.” US Const, Amend VI.
426 State v. Rafeh
ORS 813.100(3). That is true even if the person is not
charged with or convicted of DUII. See ORS 813.130(2)(c)
(stating that an administrative license suspension for refus-
ing to take a breath or blood alcohol test is independent of a
criminal charge for DUII).
If a driver who is arrested for DUII refuses to take
a breath or blood alcohol test, ORS 813.100(3) directs the
officer to take immediate custody of the person’s driver’s
license, “provide the person with a written notice of intent to
suspend, on forms prepared and provided by the Department
of Transportation,” and report to the department certain
information set out in ORS 813.120. To comply with those
statutory directives, the department has promulgated a
form captioned the Implied Consent Combined Report. That
report both provides notice to the driver that DMV intends
to suspend his or her driving privileges and also sets out
preprinted information, required by ORS 813.120, that
establishes the statutory prerequisites for suspending a per-
son’s driver’s license.2
Sending a copy of the report to the Department of
Transportation initiates an administrative suspension of the
person’s driver’s license. ORS 813.410(1). Once the depart-
ment receives the report, ORS 813.410(1) directs the depart-
ment to suspend the person’s driver’s license “on the 30th day
after the date of arrest * * * unless, at a hearing described
under this section, the department determines that the sus-
pension would not be valid as described in this section.” Id.The report provides that, “[i]f no hearing is requested, the
allegations contained in this document will be accepted as
fact” and that the report will serve as the administrative
order suspending the person’s driver’s license.
With that statutory background in mind, we turn to
the facts of this case. On September 8, 2012, defendant was
2
As relevant here, ORS 813.120 states that the report shall provide the
department with “substantially all” the following information: (1) whether the
person was under arrest for DUII when he or she was asked to submit to a breath
or blood alcohol test; (2) whether the officer had reasonable grounds to believe
that the person was under the influence of intoxicants; (3) whether the person
refused to submit to a test; (4) whether the person was informed of the rights
and consequence set out in ORS 813.130; and (5) whether the person was given
written notice of intent to suspend as required by ORS 813.100(3)(b).
Cite as 361 Or 423 (2017) 427
involved in a serious car accident and taken to the hospital.
She refused to consent to a voluntary blood draw. After she
refused consent, Deputy Cereghino with the Marion County
Sheriff’s Office filled out and signed the Implied Consent
Combined Report. The report lists the date of defendant’s
arrest as September 8, 2012. It states that her driver’s
license will be suspended “at 12:01 a.m. on the 30th day
after the date of arrest * * * for the period of time and for the
reason indicated below.” Below that statement, two boxes
are checked. The first checked box states that defendant
“refused to submit to a blood test when receiving medical
care in a health facility immediately after a motor vehi-
cle accident.” See ORS 813.100(1) (stating that a person in
those circumstances impliedly consents to a voluntary blood
draw). The second checked box states that, as a result of
her refusal, the period of suspension is for three years. The
form states that “[y]ou were given a copy of this form * * * as
written notice.” The reverse side of the form lists a driver’s
rights and responsibilities. Among other things, it describes
how a person can request an administrative hearing to chal-
lenge the suspension of the person’s driver’s license; it also
specifies the time in which the request for a hearing must be
filed, the contents that the request should include, and the
address of the agency (DMV) where the request should be
sent.
Defendant did not request a hearing, and DMV
suspended her license on October 8, 2012. Less than three
years later, another officer stopped defendant in Multnomah
County for a traffic violation. When he asked to see her
driver’s license, defendant produced an identity card but
no license. The officer checked defendant’s driving sta-
tus, learned that her driver’s license was suspended, and
arrested her for DWS. The state later charged defendant
with that offense.
In response to that charge, defendant raised, as an
affirmative defense, that she had not received notice that her
driver’s license had been suspended. See ORS 811.180(1)(b)
(providing that affirmative defense to a charge under ORS
811.182). The state replied that, under that statute, that
affirmative defense was “not available” if “[t]he defendant
[had been] provided with notice of intent to suspend under
428 State v. Rafeh
ORS 813.100.” ORS 811.180(2)(e). The state contended,
and defendant did not dispute, that the Implied Consent
Combined Report constituted notice of intent to suspend
under ORS 813.100.
Because there was no real dispute that defendant
had been driving while her license was suspended, the pri-
mary issue at trial reduced to whether defendant had been
provided with a copy of the Implied Consent Combined
Report. Defendant, for her part, testified in support of her
affirmative defense that she had no memory of anything
that occurred on the night of the accident in 2012,3 that she
had not received a copy of the Implied Consent Combined
Report either at the hospital or after she left, and that she
had not been aware that her license had been suspended
until the officer stopped her in 2015.
The state, for its part, did not call anyone to tes-
tify that defendant had been provided with a copy of the
Implied Consent Combined Report. Rather, the only direct
evidence that the state offered on that issue was con-
tained in the report itself.4 As noted, the report stated that
defendant “[was] given a copy of this form * * * as written
notice.” Defendant objected to that statement on federal
Confrontation Clause grounds,5 and the trial court overruled
her objection based on State v. Velykoretskykh, 268 Or App
706, 343 P3d 272 (2015). We allowed defendant’s petition for
review to consider whether the statement in the report—
that defendant was given a copy of the report as written
3
According to defendant’s testimony at the DWS trial, “the hospital said that
my blood alcohol limit [after the 2012 accident] was a 3.52 [sic], so [it was] enough
to kill a walrus.”
4
The record contains indirect evidence from which the jury could have
inferred either that defendant had received a copy of the report or that she was
otherwise on notice that her license had been suspended. However, that infer-
ence is not so strong that we can say that any error in admitting the report was
harmless.
5
Defendant did not object to the admission of the report as a whole. Rather,
her trial counsel was careful to specify the particular statement in the report to
which defendant objected—namely, the statement that defendant “[was] given a
copy of this form * * * as written notice.” Cf. State v. Brown, 310 Or 347, 800 P2d
259 (1990) (explaining that, when a party unsuccessfully objects to evidence as
a whole without segregating inadmissible parts of the evidence from admissible
parts, the trial court’s ruling will be sustained if any part of the evidence is
admissible).
Cite as 361 Or 423 (2017) 429
notice—was “testimonial” evidence prohibited by the federal
Confrontation Clause.6 See Crawford v. Washington, 541 US
36, 124 S Ct 1354, 158 L Ed 2d 177 (2004).7
In our view, this court’s decision in State v. Copeland,
353 Or 816, 306 P3d 610 (2013), goes a long way towards
resolving defendant’s federal Confrontation Clause chal-
lenge. In Copeland, a deputy sheriff certified that he had
served a copy of a restraining order on the defendant, who
was later charged with criminal contempt for violating that
order. At the contempt proceeding, the deputy’s certificate
of service was admitted to prove that the order had been
served on the defendant. We upheld the trial court’s rul-
ing admitting the certificate of service over the defendant’s
objection. Regarding his federal Confrontation Clause argu-
ment, we reasoned:
“[T]he primary purpose for which the certificate of service
in this case was created was to serve the administrative
functions of the court system, ensuring that [the] defen-
dant, the respondent in the restraining order proceeding,
received the notice to which he is statutorily and constitu-
tionally entitled, establishing a time and manner of notice
for purposes of determining when the order expires or is
subject to renewal, and assuring the petitioner that the
subject of the order knew of its existence. It was foresee-
able that the certificate might be used in a later criminal
prosecution to furnish proof that [the] defendant had notice
that the order had been entered against him. However, the
6
Perhaps because of State v. Copeland, 353 Or 816, 306 P3d 610 (2013),
defendant does not argue on review that the statement is inadmissible under
the Oregon evidence code, nor does she argue that the state confrontation clause
prohibits the statement’s admission. We accordingly confine our inquiry to defen-
dant’s federal constitutional challenge. Cf. State v. Mack, 337 Or 586, 101 P3d 349
(2004) (following a similar course where defendant raised only a federal constitu-
tional challenge).
7
In Crawford, the Court held that, with limited exceptions, the federal
Confrontation Clause prohibits the admission of “testimonial evidence” for the
truth of the matter asserted unless the defendant had an opportunity to cross-
examine the declarant. 541 US at 59-60 n 9, 62. Although the Court did not
provide a definitive definition of testimonial evidence in Crawford, it held that
the out-of-court statements in that case—witness accounts of past events made
during a police interrogation—fell squarely within the core definition of testimo-
nial evidence. Id. at 68-69. Since Crawford, the Court has continued to refine the
concept of testimonial evidence, and the question in this case is whether the chal-
lenged statement case comes within that concept—a question that we discuss in
greater detail below.
430 State v. Rafeh
more immediate and predominant purpose of service was
to ensure that [the] defendant could—and would—comply
with the order—that is, avoid a violation, consistently with
the primary goal of the [Family Abuse Prevention Act] pro-
cess, which is ‘abuse prevention,’ not punishment.”
353 Or at 846. As we read Copeland, it concluded that,
because the primary purpose for creating the certificate of
service was for administrative reasons and not for use in a
later criminal proceeding, the certificate was not “testimo-
nial” evidence that the Confrontation Clause prohibits.
If the certificate of service in Copeland was not tes-
timonial evidence prohibited by the Confrontation Clause,
then it is difficult to see why the challenged statement in the
Implied Consent Combined Report was. Both statements
serve the same function. Like the certificate of service in
Copeland, the statement in the Implied Consent Combined
Report certified to DMV that defendant had been given a
copy of the report as written notice that her license would be
suspended within 30 days unless she requested an admin-
istrative hearing. That statement was not made for use in
a criminal proceeding; it served instead as an assurance to
DMV that defendant had received the notice necessary to
initiate an administrative suspension of her driver’s license.
Its primary purpose was for use in an administrative pro-
ceeding, not in a criminal proceeding.
Admittedly, it was possible that the certification
could be used in a future criminal proceeding. Specifically,
if defendant’s driver’s license was suspended, if she drove
while her license was suspended, was discovered doing
so, and was charged with DWS, and if she asserted, as an
affirmative defense to that charge, that she had not been
aware that her license had been suspended, then the dep-
uty’s certification would be relevant to rebut her defense.
However, the likelihood that the certification would be rele-
vant in a future criminal DWS trial depends on the occur-
rence of those multiple contingencies. In that respect, the
likelihood of the certification’s use in a future DWS trial
is more remote than the likelihood that the certificate of
service in Copeland would be used to prove that the defen-
dant in that case was aware that a restraining order had
been issued against him. It follows in this case, as it did in
Cite as 361 Or 423 (2017) 431
Copeland, that the primary purpose of the deputy’s certi-
fication to DMV was administrative—to confirm to DMV
that defendant had been given sufficient notice for DMV
to proceed with an administrative suspension of her driv-
er’s license. Under Copeland, the deputy’s certification was
not “testimonial” evidence that the federal Confrontation
Clause prohibits.
Defendant argues, however, that Copeland either
was incorrectly decided or is distinguishable. She argues
initially that certifications, such as the one here and perhaps
in Copeland, come within the “core class” of testimonial evi-
dence identified in Crawford and, for that reason, run afoul
of the Confrontation Clause. That is so, defendant argues,
regardless of whether the statements were made for use in
civil or criminal proceedings. Second, and alternatively, she
contends that, because the primary purpose of the Implied
Consent Combined Report was to establish facts that may
be relevant to a criminal prosecution, the statement is inad-
missible testimonial evidence. In considering defendant’s
argument, we begin with the Court’s Confrontation Clause
cases. We then turn to her argument regarding how those
decisions apply in this case.
Since the Court decided Crawford in 2004, the focus
in federal Confrontation Clause cases has been whether
out-of-court statements offered for the truth of the mat-
ter asserted are “testimonial” evidence. If the evidence is
testimonial, the consequences are clear. Subject to limited
exceptions, the federal Confrontation Clause prohibits the
admission of testimonial evidence for the truth of the matter
asserted unless the witness is unavailable and the defen-
dant had a prior opportunity to cross-examine the witness.
Crawford, 541 US at 59-60 n 9, 62. The more difficult ques-
tion has been determining what constitutes testimonial evi-
dence. Although Crawford identified “testimonial evidence”
as the central concern of the federal Confrontation Clause,
the Court did not have occasion to define the boundaries of
that concept in Crawford. See id. at 51-52 (noting that “vari-
ous formulations of this core class of ‘testimonial’ statements
exist” but finding it unnecessary to choose among them).
Rather, in that case, the police had interrogated a witness
as part of a criminal investigation, and the Court explained
432 State v. Rafeh
that the witness’s statements regarding what had happened
constituted “testimonial evidence” under any definition of
that phrase. Id. at 69.
More specifically, the Court explained in Crawford
that “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.” Id. at 50. The Court noted that, con-
sistently with that focus, the text of the Clause “applies to
‘witnesses’ against the accused—in other words, those who
‘bear testimony,’ ” which was defined in a contemporaneous
dictionary as “ ‘[a] solemn declaration or affirmation made
for the purpose of establishing or proving some fact.’ ” Id.
at 51 (quoting an 1828 dictionary). It followed, the Court
reasoned, that the Confrontation Clause prevents not only
the use of testimonial evidence obtained in ex parte bail and
committal examinations, the use of which had given rise
to the Clause, but also to testimonial evidence obtained in
the modern day analogue of those ex parte examinations—
investigations of criminal conduct by police. Id. at 53.
The evidence at issue in Crawford fell squarely
within that core concern—the police were questioning a
witness to obtain evidence for use in a later criminal pro-
ceeding. In the cases decided after Crawford, the Court
has made clear that not all statements made in response
to police questioning constitute testimonial evidence even
when offered for the truth of the matter asserted. What mat-
ters is whether “the primary purpose of the interrogation
[wa]s to establish or prove past events potentially relevant
to later criminal prosecution.” Davis v. Washington, 547 US
813, 822, 126 S Ct 2266, 165 L Ed 2d 224 (2006). Conversely,
when “the primary purpose of the interrogation is to enable
police assistance to meet an ongoing emergency,” the state-
ments will not be testimonial. Id.8
8
The primary purpose for which a statement was either elicited or made
is assessed objectively. Michigan v. Bryant, 562 US 344, 359-60, 131 S Ct 1143,
179 L Ed 2d 93 (2011); Davis, 547 US at 822. Accordingly, the Court has inde-
pendently “evaluate[d] the circumstances in which the encounter occurs and the
statements and actions of the parties” in determining the primary purpose for
which the statement was made. Bryant, 562 US at 359. We employ the same stan-
dard of review.
Cite as 361 Or 423 (2017) 433
As the Court observed in Davis, those two cate-
gories of statements do not exhaust the field. Id. That is,
“ ‘[t]he existence vel non of an ongoing emergency is not the
touchstone of the testimonial inquiry. * * * Instead, whether
an ongoing emergency exists is simply one factor * * * that
informs the ultimate inquiry regarding the “primary pur-
pose” of the interrogation.’ ” Ohio v. Clark, 576 US ___, 135
S Ct 2173, 2180, 192 L Ed 2d 306 (2015) (quoting Michigan
v. Bryant, 562 US 344, 374, 366, 131 S Ct 1143, 179 L Ed
2d 93 (2011); citations omitted; second ellipsis in Clark). In
making that assessment, the formality or informality of the
statement bears on its testimonial character. Id.The Court’s two most recent Confrontation Clause
cases confirm our understanding in Copeland that the ques-
tion whether a statement is testimonial turns on whether it
was elicited or made for use in a criminal proceeding. See
Clark, 135 S Ct at 2177; Williams v. Illinois, 567 US 50, 132
S Ct 2221, 183 L Ed 2d 89 (2012). In Williams, the plural-
ity would have held that a DNA profile used to identify the
defendant as the perpetrator of a crime was not testimonial
evidence, even if offered for the truth of the matter asserted;
the plurality explained that the profile had not been prepared
for “the primary purpose of accusing a targeted individual of
engaging in criminal conduct.” 132 S Ct at 2242 (plurality).
Justice Thomas concurred in the judgment but would have
stated the test more broadly; specifically, he “agree[d] that,
for a statement to be testimonial within the meaning of the
Confrontation Clause, the declarant must primarily intend to
establish some fact with the understanding that [the declar-
ant’s] statement may be used in a criminal prosecution.” 132
S Ct at 2261 (Thomas, J., concurring in the judgment).9
9
Justice Thomas disagreed with the plurality that a statement would be
testimonial only if it were made for “ ‘the primary purpose of accusing a targeted
individual of engaging in criminal conduct.’ ” 132 S Ct at 2262 (opinion concur-
ring in the judgment) (quoting plurality opinion). In his view, the plurality’s focus
on “a targeted individual” was too narrow because any statement made before the
suspect was identified would be beyond the scope of the Confrontation Clause, a
result that was inconsistent with the historical practices that had led to the adop-
tion of the Clause. Id. Although Justice Thomas concluded that the DNA profile
at issue in Williams had been prepared primarily for use in a criminal trial, and
thus disagreed with the plurality on that point, he concurred in the judgment
because, in his view, the profile lacked the solemnity and formality that testimo-
nial evidence requires. Id. at 2260-63.
434 State v. Rafeh
The Court clarified the standard in Clark. In that
case, a teacher noticed “ ‘[r]ed marks, like whips of some
sort,’ ” on a three-year old child’s face. 135 S Ct at 2178.
When the teacher asked the child, “ ‘Who did this? What
happened to you?,’ ” the child identified the defendant as the
person who had harmed him. Id. At the defendant’s trial for
assault, the trial court ruled that the child was not compe-
tent to testify but admitted the child’s identification of the
defendant over a federal Confrontation Clause objection. Id.The Court upheld the ruling. It explained: “Because neither
the child nor his teachers had the primary purpose of assist-
ing in [the defendant’s] prosecution, the child’s statements
do not implicate the Confrontation Clause and therefore
were admissible at trial.” Id. at 2177.
In reaching that conclusion in Clark, the Court
retraced its Confrontation Clause cases beginning with
Crawford. Id. at 2179-80. It noted that the child’s state-
ment at issue in Clark differed from statements in earlier
cases because the statement had been made to a teacher,
and not to law enforcement officers. Id. at 2181. The Court
declined to find, however, that all statements made to per-
sons other than law enforcement officers will be nontesti-
monial, although it noted that “such statements are much
less likely to be testimonial than statements to law enforce-
ment officers.” Id. Rather, it concluded that the child’s state-
ments were not testimonial because they “clearly were not
made with the primary purpose of creating evidence for [the
defendant’s] prosecution.” Id. In reaching that conclusion,
the Court looked at the statement from both the teacher
and the child’s perspectives. Id.; see Bryant, 562 US at 367-
68 (explaining that both the questioner and the declarant’s
purpose bear on the primary purpose determination).
The Court concluded that, from the teacher’s per-
spective, the primary purpose of the question was to identify
the abuser to protect the child from further harm. Clark,
135 S Ct at 2181. That was so, the Court reasoned, regard-
less of “[w]hether the teachers thought that [protecting the
child] would be done by apprehending the abuser or by some
other means.” Id. Similarly, even though the teachers were
mandatory reporters, the Court reasoned that “manda-
tory reporting statutes alone cannot convert a conversation
Cite as 361 Or 423 (2017) 435
between a concerned teacher and her student into a law
enforcement mission aimed primarily at gathering evidence
for a prosecution.” Id. at 2183. Finally, the Court noted that
studies showing that children “have little understanding of
prosecution” made it “unlikely that a 3-year-old child in [the
child’s] position would intend his statements to be a sub-
stitute for trial testimony.” Id. at 2182 (internal quotation
marks omitted).
Given Clark, we reaffirm our decision in Copeland.
If a statement is “not made [or elicited] with the primary
purpose of creating evidence for [the defendant’s] prosecu-
tion,” then the statement is not testimonial. See id. It is true,
as defendant notes, that the Court has sometimes said that
a statement will be testimonial if “the ‘primary purpose’ of
the conversation was to ‘creat[e] an out-of-court substitute
for trial testimony.’ ” See id. at 2180 (quoting Bryant, 562
US at 358). Defendant focuses on that statement and sim-
ilar statements in Crawford. Those statements, however,
should not be divorced from the context in which they were
made. The question in Bryant and in Crawford was whether
police officers were seeking to create “an out-of-court sub-
stitute” for testimony in a criminal trial. To accept defen-
dant’s expansive interpretation of the Confrontation Clause,
not only would we have to overlook the context in which the
statements on which he relies were made, but we also would
have to ignore the Court’s holding in Clark that only out-
of-court statements made or elicited primarily for use in a
criminal proceeding are testimonial.
Following Clark and Copeland, we conclude that the
certification in the Implied Consent Combined Report was
not made for “the primary purpose of assisting in [defen-
dant’s] prosecution.” Clark, 135 S Ct at 2177; see also id. at
2184 (Scalia, J., concurring in the judgment) (explaining
that, in asking the child who had harmed him, the teacher
did not “have the primary purpose of establishing facts for
later prosecution”). Rather, as explained above, the primary
purpose of the certification is administrative. It confirmed
that defendant had received sufficient notice for DMV to
proceed with an administrative license suspension hearing.
And the decision whether to suspend defendant’s license
was undertaken to ensure the safety of the other drivers
436 State v. Rafeh
on the state’s roads, much in the same way that the child’s
statement in Clark identifying who had harmed him was
elicited to protect the child from further harm. Indeed, the
challenged certification—that defendant had been given a
copy of the report as written notice—would have no rele-
vance to a prosecution for DUII. And, as explained above,
the prospect that the certification might become relevant
in some future prosecution for DWS turns on far too many
contingencies to say that the certification’s primary purpose
was for use in a criminal proceeding.10
Defendant offers essentially three contrary argu-
ments. She contends that the report, as a whole, was testimo-
nial because (1) it is a formal or solemn statement; (2) it was
made during a criminal investigation; and (3) it recounts
facts that are relevant both to a prosecution for DUII and
DWS. It follows, she concludes, that the primary purpose for
making the statements in the report was for use in a crimi-
nal proceeding. We consider those arguments briefly.
As defendant correctly notes, the certification at
issue in this case is a formal statement rather than an off-
hand remark. And, as the Court has explained, the formal-
ity or informality of a statement is one indication of whether
the statement was made or elicited for the primary purpose
of use in a prosecution. “A ‘formal station-house interroga-
tion,’ like the questioning in Crawford, is more likely to pro-
voke testimonial statements, while less formal questioning
is less likely to reflect a primary purpose aimed at obtaining
testimonial evidence against the accused.” Clark, 135 S Ct
at 2180 (quoting Bryant, 562 US at 366). While the certi-
fication is formal, its formality derives from the role that
it plays in initiating an administrative proceeding to sus-
pend a person’s driver’s license. In this case, the challenged
statement was made to DMV for its use in an administra-
tive license suspension hearing. See id. at 2181 (noting that
10
As noted above, it was possible that the certification could be used in a
DWS proceeding if the defendant’s license was suspended, she drove while her
license was suspended, she was charged with that offense, and she raised, as an
affirmative defense to that charge, that she was not aware that her license had
been suspended. However, the prospect that that concatenation of events would
ever come to pass is so distant that we can say objectively that the primary pur-
pose of the certification was not for use in a future criminal proceeding.
Cite as 361 Or 423 (2017) 437
the entity to whom the statement is made bears on whether
its primary purpose was for use in a criminal proceeding).
The statement certified to DMV that defendant had received
notice that her driver’s license would be suspended unless
she requested an administrative hearing. In these circum-
stances, we conclude, as we did in Copeland, that the for-
mality that attends the certification does not suggest that
its primary purpose was for use in a criminal proceeding.
Defendant’s second and third arguments are inter-
related. We assume, as defendant argues, that Deputy
Cereghino completed the Implied Consent Combined Report
contemporaneously with an investigation into whether
defendant had driven while intoxicated. It is also true
that some of the statements included in the report bear on
whether defendant was driving while intoxicated. However,
as Davis makes clear, a single conversation can contain both
testimonial and nontestimonial statements. 547 US at 828-
29. It follows that the inquiry should focus on the primary
purpose of the challenged statement rather than the pur-
pose of the conversation as a whole. See id. Only testimonial
statements need be excluded. See id. at 829 (explaining that
“[t]hrough an in limine procedure, [trial courts] should
redact or exclude the portions of any statement that have
become testimonial, as they do, for example, with unduly
prejudicial portions of otherwise admissible evidence”).
We accordingly focus on the challenged certifi-
cation, not on the report as a whole. Given that focus, we
reiterate that the certification’s primary purpose is not tes-
timonial. Rather, its primary purpose was to confirm to
DMV that the administrative proceeding could go forward
because defendant had received notice that her license was
subject to suspension unless she requested an administra-
tive hearing. It is certainly true, as defendant notes, that
the Implied Consent Combined Report also contains state-
ments that bear on whether the officers had probable cause
to arrest defendant for driving under the influence of intox-
icants. Defendant, however, did not object to the admission
of those statements in her DWS trial. Accordingly, we need
not decide whether, as the state argues, the primary pur-
pose of including those statements in the Implied Consent
Combined Report was administrative—i.e., to establish
438 State v. Rafeh
that the statutory prerequisites for suspending defendant’s
driver’s license had been met. Similarly, we need not decide
whether, as defendant argues, the primary purpose of
including those preprinted statements in the report was to
memorialize evidence for use in a criminal proceeding.
Rather, we limit our decision to the statement that
defendant has challenged—the certification that she received
notice of the state’s intent to suspend her driver’s license.
In this case, it is sufficient to hold, as we did in Copeland,
that that certification was not testimonial evidence within
the meaning of Clark and Crawford. It follows that the trial
court correctly ruled that the federal Confrontation Clause
did not prohibit the admission of that certification in defen-
dant’s DWS trial.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.