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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


10th Circuit Court – Salem District Division
No. 2012-716


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                                   BRYAN MAGA

                           Argued: October 16, 2013
                          Opinion Issued: May 16, 2014

      Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney
general, on the brief and orally), for the State.

      Mark Stevens, of Salem, on the brief and orally, for the defendant.

       BASSETT, J. The defendant, Bryan Maga, appeals his conviction,
following a bench trial, for driving with an alcohol concentration of .02 or
higher, while he was under the age of twenty-one (DUI). See RSA 265-A:2
(Supp. 2012) (amended 2013). On appeal, he argues that the 10th Circuit
Court – Salem District Division (Moore, J.) erred when it: (1) admitted into
evidence a certificate from a state crime laboratory employee attesting that the
breathalyzer machine used by the Salem Police Department was in working
order; and (2) ruled that the police had probable cause to arrest him. We
affirm.

 
       The following facts are drawn from the record or are otherwise
undisputed. On June 15, 2012, the defendant, who was nineteen, was driving
in Salem when a police officer stopped him for a defective brake light. When
the officer approached the car, he smelled alcohol and observed that the
defendant’s eyes were glassy and red. The officer asked the defendant for his
license, but the defendant did not produce it. When the officer asked the
defendant whether he had consumed any alcohol that evening, the defendant
admitted to drinking one beer about thirty minutes prior to the stop. He then
agreed to take field sobriety tests.

       The officer conducted three field sobriety tests: a horizontal-gaze
nystagmus test; a walk-and-turn test; and a one-leg stand test. The officer
gave the defendant a score of six on the horizontal-gaze nystagmus test (a score
over four suggests impairment), three on the walk-and-turn test (a score of two
or more suggests impairment), and one on the one-leg stand test (a score of two
or more suggests impairment). Thereafter, the defendant disclosed that he had
actually consumed two beers at the home of a friend. Based upon the
defendant’s statements, his glassy and red eyes, the smell of alcohol emanating
from his car, and the results of the field sobriety tests, the officer concluded
that the defendant was impaired and took him into custody. After arriving at
the police station, a second police officer administered a breathalyzer test,
which showed that the defendant had a blood alcohol concentration of 0.09.

      The defendant was charged with DUI under RSA 265-A:2, in two
alternative complaints: one alleging that he drove a motor vehicle while
impaired, see RSA 265-A:2, I(a), and the other that he drove a motor vehicle
while he had an alcohol concentration in excess of 0.02, and while he was
under the age of twenty-one, see RSA 265-A:2, I(b).

        Prior to trial, the defendant gave the State notice that he would object to
the admission into evidence of “any certificates or documents regarding any
breath testing machine without the opportunity to confront the person or
persons who prepared and signed any such certificates or documents.” During
trial, the State sought to introduce into evidence a certificate from a state crime
laboratory employee attesting to the fact that the breathalyzer machine used to
test the defendant was in working order. The certificate contained the following
two statements:

      . . . I hereby certify that on this date I completed the preventive
      maintenance check on the Intoxylizer 5000 EN, serial [number] 68-
      010372 located at the Salem Police Department[;]

and




                                        2
      I found said instrument and external standard reference, Guth
      2100 simulator serial [number] DR 4259 to be in proper working
      order as of February 10, 2012.

The defendant objected, arguing that “[t]he certificate . . . contains a statement
that – from somebody at the State lab who’s not here . . . [it’s] a testimonial
statement. This is obviously prepared for litigation.” The defendant further
contended that the statement from the state laboratory employee was
equivalent to the statement from the laboratory analyst in Melendez–Diaz v.
Massachusetts, 557 U.S. 305 (2009), certifying a drug testing report, which
was held inadmissible as a testimonial statement. He argued, therefore, that
under the Confrontation Clause, the court should not admit the breathalyzer
certificate unless the defendant had the opportunity to cross-examine the state
laboratory employee. The State countered that the statement was not
testimonial. The court overruled the objection.

      At the close of trial, the defendant moved to dismiss the DUI charges,
arguing that there was no probable cause for his arrest. The court denied the
motion. The court subsequently found the defendant guilty of driving with a
blood alcohol concentration in excess of 0.02 while under the age of twenty-
one. Although the record is not clear as to the second charge, the parties agree
that the court found him not guilty of driving while impaired. This appeal
followed.

      The defendant argues that admitting the breathalyzer certificate into
evidence violated his rights under the State and Federal Confrontation Clauses
because he did not have an opportunity to cross-examine the person who
prepared the certificate. See U.S. CONST. amend. VI; N.H. CONST. pt. I, art.
15. He also argues that the officer lacked probable cause for his arrest and,
therefore, that the trial court erred in denying his motion to dismiss. We
address these arguments in turn.

         I. Confrontation Clause
 
       We review the defendant’s Confrontation Clause challenge de novo. State
v. Brooks, 164 N.H. 272, 278 (2012). When a defendant raises a claim under
both the State and Federal Constitutions, we typically address his State claim
first. See State v. Ayer, 154 N.H. 500, 504 (2006). Here, although the
defendant invokes the Confrontation Clause protections of both the State and
Federal Constitutions, his argument relies upon his rights as interpreted under
the Federal Constitution: He contends that admitting the breathalyzer
certificate into evidence, without providing him with the opportunity to cross-
examine the state crime laboratory employee who prepared and signed the
certificate, is contrary to Crawford v. Washington, 541 U.S. 36 (2004), and
Melendez-Diaz. We have not adopted the Crawford analysis under the State



                                        3
Constitution, and the defendant does not argue that we should do so now. See
State v. Munoz, 157 N.H. 143, 148 (2008). Nor does he address the
applicability of the Confrontation Clause test that we have adopted – namely,
that of Ohio v. Roberts, 448 U.S. 56 (1980). See Brooks, 164 N.H. at 282; Ayer,
154 N.H. at 511. Accordingly, we conclude that the defendant has not
established that admission of the breathalyzer certificate violated his rights
under Part I, Article 15 of the New Hampshire Constitution. See Munoz, 157
N.H. at 148 (concluding that defendant did not prevail on State Confrontation
Clause argument as he did not argue the standard we apply under State
Constitution). We therefore turn to his argument under the Federal
Constitution.

       The Sixth Amendment provides: “In all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against
him.” U.S. CONST. amend. VI. The Fourteenth Amendment renders the
Confrontation Clause binding on the States. Michigan v. Bryant, 131 S. Ct.
1143, 1152 (2011). The Supreme Court has concluded that the Confrontation
Clause guarantees a defendant the opportunity to confront any person whose
testimonial statements are introduced against him, and to assess the reliability
of those statements “in the crucible of cross-examination.” Crawford, 541 U.S.
at 61.

       Thus, only “testimonial statements” cause a declarant to be a “witness”
within the meaning of the Confrontation Clause. Davis v. Washington, 547
U.S. 813, 821 (2006). Accordingly, “[t]he crucial determination under Crawford
as to whether an out-of-court statement violates the Confrontation Clause is
whether it is ‘testimonial’ or not.” State v. O’Maley, 156 N.H. 125, 131 (2007),
overruled in part by Melendez–Diaz, 557 U.S. at 312–20. “While Crawford
endeavored to leave for another day any effort to spell out a comprehensive
definition of ‘testimonial’, the Court instructed that various formulations of this
core class of testimonial statements exist.” Commonwealth v. Zeininger, 947
N.E.2d 1060, 1068 (Mass. 2011) (quotation, citation, and brackets omitted).
These formulations all share “a common nucleus,’’ and include:

      “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 declarants would reasonably
      expect to be used prosecutorially,” “extrajudicial statements
      contained in formalized testimonial materials, such as affidavits,
      depositions, prior testimony, or confessions;” [and] “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.”




                                        4
Id. (quoting Crawford, 541 U.S. at 51-52 (citations and ellipses omitted)).

       A statement is testimonial if its primary purpose is “to establish or prove
past events potentially relevant to later criminal prosecution.” Brooks, 164
N.H. at 279 (quotation omitted). “If the primary purpose of creating the record
is not to prove a fact at trial, the admissibility of the records is the concern of
state and federal rules of evidence, not the Confrontation Clause.” Id.
(quotation omitted). Under this reasoning, business and public records are
generally admissible, without confrontation, because they have been “created
for the administration of an entity’s affairs and not for the purpose of
establishing or proving some fact at trial,” and, therefore, are not testimonial.
Melendez–Diaz, 557 U.S. at 324; see also Brooks, 164 N.H. at 279.

       The defendant contends that the breathalyzer certificate in this case, like
the drug certificates in Melendez-Diaz, is testimonial because it “bears a
solemn affirmation” from the state laboratory employee, was created pursuant
to a statute, and bears the seal and signature of a Justice of the Peace. The
State responds that the breathalyzer certificate is not testimonial because it
was not created for the “sole purpose” of providing evidence against the
defendant and indeed did not directly inculpate him or prove an essential
element of the charge against him; rather, it was intended only to serve as a
foundation for the admission of substantive evidence. We agree with the State
that this breathalyzer certificate is not testimonial.

       The defendant relies upon Melendez-Diaz to support his argument. In
Melendez-Diaz, the Supreme Court held that drug testing result reports from
analysts at a state laboratory were testimonial and subject to the Confrontation
Clause because they 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,” and the “sole purpose of the affidavits was to provide
prima facie evidence of the composition, quality, and the net weight of the
analyzed substance.” Melendez-Diaz, 557 U.S. at 310-311 (quotations
omitted). The Supreme Court added that “the analysts were aware of the
affidavits’ evidentiary purpose, since that purpose – as stated in the relevant
state-law provision – was reprinted on the affidavits themselves.” Id. at 311.

       Unlike the certificates in Melendez-Diaz, the breathalyzer certificate here
did not provide case-specific evidence against a particular defendant. In
Melendez-Diaz, the drug analysis certificates were direct proof of an element of
the offense charged. Melendez-Diaz, 557 U.S. at 310-11. Here, although RSA
265-A:12, II (Supp. 2013) enables a party to introduce into evidence “[a] copy of
the preventive maintenance check form filled out by the forensic breath testing
supervisor who performed the last preventive maintenance check,” this type of
certificate does not establish an element of the offense of driving under the
influence. See RSA 265-A:2, I. It does not contain any information regarding



                                         5
the defendant’s blood alcohol concentration, nor address the specifics of his
case. Notably, the breathalyzer certificate at issue here was created in
February 2012, several months before the defendant’s June 2012 arrest.
Rather, it describes the results of sample testing and the calibration of the
machine, and attests that the machine is in “proper working order.” Thus, the
primary purpose of the certificate is to ensure the reliability and quality of the
testing machine used by the police, and therefore serves only as the foundation
for the admission of substantive evidence. See RSA 265-A:12, II (allowing
certificate into evidence); N.H. Admin. Rules, Saf-C 6302.04 (requiring forensic
breath testing supervisor to conduct preventive maintenance check every six
months); Brooks, 164 N.H. at 281-82 (distinguishing Melendez-Diaz because
documents at issue, authenticating various business records, served as
foundation for admission of substantive evidence and certificates themselves
were of minimal evidentiary value). The substantive evidence here was the
testimony by the police officer who conducted the breath testing as to the test
results.

       As the Massachusetts Supreme Judicial Court recently explained,
breathalyzer certificates “bear a more attenuated relationship to conviction”
than does testimonial evidence: “They support one fact (the accuracy of the
machine) that, in turn, supports another fact that can establish guilt (blood
alcohol level).” Zeininger, 947 N.E.2d at 1069 (quotation omitted). The court
observed that in Melendez–Diaz the Supreme Court recognized this distinction:
“‘Contrary to the dissent’s suggestion we do not hold, and it is not the case,
that anyone whose testimony may be relevant in establishing the chain of
custody, authenticity of the sample, or accuracy of the testing device, must
appear in person as part of the prosecution’s case. Documents prepared in the
regular course of equipment maintenance may well qualify as nontestimonial
records.’” Zeininger, 947 N.E.2d at 1069 (quoting Melendez-Diaz, 557 U.S. at
311 n. 1; brackets and ellipses omitted; emphasis added); but cf. Com. v.
Dyarman, 73 A.3d 565, 571 (Pa. 2013) (“The footnote in Melendez–Diaz does
not create a blanket rule of admissibility for any hearsay evidence relevant to
establishing the accuracy of a testing device. It merely states that such
evidence will not be deemed testimonial in every case.” (quotation and brackets
omitted)), cert. denied, 134 S. Ct. 948 (2014). We agree. Accordingly, we hold
that the certificate attesting that the breathalyzer was in working order is
nontestimonial in nature because it was “created for the administration of an
entity’s affairs and not for the purpose of establishing or proving some fact at
trial.” Melendez-Diaz, 557 U.S. at 324. Thus, the admission of the certificate
into evidence did not violate the defendant’s rights under the Confrontation
Clause of the Federal Constitution.

       In concluding that the breathalyzer certificate is not a testimonial
statement, we join courts in other jurisdictions that have held that breathalyzer
certificates are distinguishable from the certificates at issue in Melendez–Diaz



                                        6
because their primary purpose is effective administration rather than
prosecution. See, e.g., Zeininger, 947 N.E.2d 1070; People v. Pealer, 985
N.E.2d 903, 908 (N.Y. 2013); Chambers v. State, __ S.W.3d ___, ___, 2012 WL
5360966, at *8 (Ark. Nov. 1, 2012); State v. Kramer, 278 P.3d 431, 437-39
(Idaho Ct. App. 2012); Matthies v. State, 85 So. 3d 838, 844 (Miss. 2012);
Dyarman, 73 A.3d at 569. In fact, the defendant has not cited, nor have we
found, any case that holds that breathalyzer certificates are testimonial.

      The defendant’s brief could be read to argue that, because the trial court
erred in admitting the breathalyzer certificate, there was insufficient evidence
to support the verdict. Because we find that the trial court did not err in
admitting the breathalyzer certificate, we need not address this argument.

      II. Probable Cause

      After the State rested its case, the defendant moved to dismiss, arguing
that the officer lacked probable cause to arrest him. The court denied the
motion.

       On appeal, the defendant contends that the police lacked probable cause
to arrest him for DUI because he did not demonstrate sufficient signs of
intoxication. The defendant argues that, although his brake light was not
functioning properly, he was otherwise driving normally – he reacted
appropriately to traffic signals, stayed within his lane, drove at an average
speed, and responded normally and promptly when the officer activated his
blue lights to initiate the stop. He further explains that although his eyes were
red, he had been smoking, and that cigarette smoke can cause red eyes. He
also stresses that his speech was not slurred. The State responds that the
facts were sufficient to establish probable cause that the defendant had
committed a DUI offense.

       An officer has probable cause to arrest when he or she has “knowledge
and trustworthy information sufficient to warrant a person of reasonable
caution and prudence in believing that the arrestee has committed an offense.”
Ojo v. Lorenzo, 164 N.H. 717, 722 (2013) (quotation omitted). “In determining
whether the police had probable cause, we review reasonable probabilities and
not the amount of evidence required to sustain a conviction or to make out a
prima facie case.” State v. Newcomb, 161 N.H. 666, 669 (2011) (quotation
omitted). “We are not bound by mathematical calculations in making this
determination,” but instead “must approach the issue with a concern for the
factual and practical considerations of everyday life on which reasonable and
prudent [people], not legal technicians, act.” Id. (quotation omitted). “We will
not overturn a trial court’s determination of probable cause unless, when the
evidence is viewed in the light most favorable to the State, the decision is




                                        7
contrary to the manifest weight of the evidence.” State v. Vandebogart, 139
N.H. 145, 164 (1994).

       Contrary to the defendant’s argument, when the officer placed the
defendant under arrest, the officer had sufficient evidence suggesting that the
defendant had committed a DUI offense. The defendant failed to produce his
license when the officer requested it; he told the officer that he had consumed
two beers; and the officer observed that the defendant’s eyes were glassy and
red and noticed that the odor of alcohol emanated from the defendant’s car.
Although the defendant did not exhibit impairment in one field sobriety test, he
exhibited impairment in the other two. These facts, taken as a whole, provided
the officer with probable cause to arrest the defendant for operating his vehicle
in violation of RSA 265-A:2, I. See Newcomb, 161 N.H. at 669-70; Fisher v.
State, ___ S.W.3d ___, ___, 2013 WL 1904657, at *8 (Ark. Ct. App. May 8, 2013)
(probable cause for arrest existed where defendant admitted that he had been
drinking, his eyes were bloodshot and watery, he smelled of intoxicants, and he
failed two of three field-sobriety tests); cf. Smith v. State ex rel. Dept. of
Transp., 11 P.3d 931, 933, 937 (Wyo. 2000) (in appeal from suspension of
driver’s license, police officer had probable cause to arrest when individual
failed two out of three sobriety tests, among other indicators of intoxication).

      Viewing the evidence in the light most favorable to the State, we conclude
that the trial court’s determination of probable cause was not contrary to the
manifest weight of the evidence.

                                                 Affirmed.

      DALIANIS, C.J, and HICKS, CONBOY, and LYNN, JJ., concurred.




                                       8
