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Oregon Supreme Ct - May 4, 2017

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by: Sara Werboff • May 8, 2017 • no comments

Confrontation - "Implied Consent Combined Report" Not Barred by Federal Confrontation Clause in DWS Trial

The court affirms the introduction of an "implied consent combined report" in defendant's trial for driving while suspended. Defendant's driver's license was suspended following her refusal to take a blood test following a bad accident when police suspected she had driven while intoxicated. At that time, police filled out an implied consent combined report, which asserted that defendant had been given notice of the suspension. A year and a half later, defendant was charged with driving while suspended after police stopped her and determined her license had been suspended. Defendant asserted that she had not been given notice of the suspension, and the state introduced over defendant's federal confrontation clause objection the combined report. Defendant was convicted and appealed.

The court first explains in detail the administrative scheme behind the combined report. The report initiates an administrative process for a formal license suspension with the DMV. To be sure, the report also may, at a future time, be used as evidence in a criminal proceeding, but the court notes that several contingencies must occur before the form has that purpose. Accordingly, the court notes that its earlier decision in State v. Copeland, 353 Or 816 (2013), in which it concluded that a certificate of service on a restraining order was not testimonial, goes a long way towards resolving this case. Under Copeland, the combined report was not testimonial because its primary purpose was administrative.

The court then reviews federal confrontation cases and explains that whether a statement is testimonial turns on whether it is made for use in a criminal proceeding. The court reaffirms its decision in Copeland: if a statement is not made with the primary purpose for use in a criminal proceeding, it is not testimonial. Here, the combined report's primary purpose was administrative and the report was therefore not testimonial. That is so notwithstanding the formality of the statement and the fact that the form was filled out contemporaneously with an investigation into DUII. The court explains that it focuses on the challenged certification that defendant had been given notice, not the report as a whole.

State v. Rafeh, 361 Or 423 (2017) (Kistler, J.)