                                                         130 Nev., Advance Opinion 12.
                              IN THE SUPREME COURT OF THE STATE OF NEVADA


                       CITY OF RENO,                                         No. 62313
                       Appellant,
                       vs.
                       THE HONORABLE KENNETH
                                                                                    FILED
                       HOWARD; RENO MUNICIPAL COURT;                                 FEB 2 7 2014
                       AND CHERYL LEE,
                                                                                    TRACE K LINDEMAN
                       Respondents.                                            CL      0 SUP 9‘11E

                                                                              BY
                                                                                        PUTY




                                  Appeal from a district court order denying a petition for a writ
                       of mandamus. Second Judicial District Court, Washoe County; Scott N.
                       Freeman, Judge.
                                  Affirmed.


                       Christopher P. Hazlett-Stevens, Deputy City Attorney, Reno,
                       for City of Reno.

                       Larry K. Dunn & Associates and Larry K. Dunn and Karena K. Dunn,
                       Reno,
                       for Cheryl Lee.

                       Jonathan D. Shipman, Deputy City Attorney, Reno,
                       for the Honorable Kenneth Howard and Reno Municipal Court.



                       BEFORE THE COURT EN BANC.

                                                       OPINION
                       By the Court, PARRAGUIRRE, J.:
                                  In Nevada, the declaration of a person who collects a criminal
                       defendant's blood for evidentiary testing may be admitted at trial. NRS

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                50.315(4). A defendant in a misdemeanor driving under the influence trial
                waives the right to confront the maker of such a declaration unless the
                defendant can show a substantial and bona fide dispute regarding the
                facts in the declaration. NRS 50.315(6). In this appeal, we discuss the
                Confrontation Clause implications of NRS 50.315(6). We conclude that, in
                light of the United States Supreme Court's decision in Melendez-Diaz v.
                Massachusetts, 557 U.S. 305 (2009), the statute's substantial-and-bona-
                fide-dispute requirement impermissibly burdens the right to confront the
                declarant. Accordingly, we overrule our prior decision in City of Las Vegas
                v. Walsh, 121 Nev. 899, 124 P.3d 203 (2005), and affirm the district court's
                order.
                                 FACTS AND PROCEDURAL HISTORY
                            Appellant City of Reno (City) charged respondent Cheryl Lee
                with misdemeanor driving under the influence in Reno Municipal Court.
                At Lee's bench trial, the City sought to introduce into evidence the
                declaration of Shirley Van Cleave, a phlebotomist who collected Lee's
                blood for evidentiary testing after Lee's arrest. Lee objected to the
                admission of the declaration on Confrontation Clause grounds, and the
                municipal court sustained the objection and excluded the declaration. The
                City petitioned the district court for a writ of mandamus to compel the
                municipal court to admit the declaration into evidence. The district court
                denied the petition, explaining that admission of the declaration over Lee's
                objection would have violated Lee's rights under the Confrontation Clause.
                The City now appeals.
                                              DISCUSSION
                            On appeal, the City argues that the district court abused its
                discretion by denying its petition for writ of mandamus, reasoning that the

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                 district court erroneously concluded that NRS 50.315(6)'s waiver
                 provisions violate the Confrontation Clause of the Sixth Amendment to
                 the U.S. Constitution. This court reviews a district court's decision to
                 deny a writ petition for an abuse of discretion and reviews• the
                 constitutionality of a statute de novo. Walsh, 121 Nev. at 902, 124 P.3d at
                 205.
                 This court has jurisdiction to hear this appeal
                             Lee initially argues that we lack jurisdiction over this appeal
                 because the proceedings in the municipal court remain pending. This
                 court "has jurisdiction to review upon appeal ... an order granting or
                 refusing to grant .. . mandamus." NRS 2.090(2). Further, "[a]n appeal
                 may be taken from . .. [a] final judgment entered in an action or
                 proceeding commenced in the court in which the judgment is rendered."
                 NRAP 3A(b)(1). Where a petition for writ of mandamus is the only issue
                 before a district court, we have held that the district court's order denying
                 the petition "is a final judgment within the meaning of NRAP 3A(b)(1)."
                 Ashokan v. State, Dep't of Ins.,   109 Nev. 662, 665, 856 P.2d 244, 246
                 (1993). Because the City's petition was the only issue before thefl district
                 court, we conclude that we have jurisdiction to hear this appeal.
                 The declaration is testimonial
                             The Confrontation Clause provides that "the accused shall
                 enjoy the right. . to be confronted with the witnesses against him" U.S.
                 Const. amend. VI. The U.S. Supreme Court has held that the
                 Confrontation Clause prohibits the admission of testimonial hearsay
                 against a criminal defendant unless the declarant is unavailable and the
                 defendant had a prior opportunity to cross-examine the declarant.
                 Crawford v. Washington, 541 U.S. 36, 68 (2004). Documents "created

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                solely for an 'evidentiary purpose" and "in aid of a police investigation" are
                testimonial hearsay, Bul!coming v. New Mexico, 564 U.S. „ 131 S.
                Ct. 2705, 2717 (2011) (quoting Melendez-Diaz, 557 U.S. at 311), and we
                have held that declarations made and offered pursuant to MRS 50.315(4)
                are testimonial hearsay. Walsh, 121 Nev. at 906, 124 P.3d at 207-08.
                            NRS 50.315(4) allows a declaration made under penalty of
                perjury by a person who collects blood from a subject for evidentiary
                testing to be admitted in evidence to prove the declarant's occupation, the
                identity of the subject, and that the declarant kept the sample in his
                custody until delivering it to another identified person.
                            The parties do not dispute that Van Cleave's declaration was
                made and offered pursuant to MRS 50.315(4) and thus is testimonial
                hearsay. Because the record does not suggest that Van Cleave was
                unavailable or that Lee had a prior opportunity to cross-examine Van
                Cleave, Lee's right to confront Van Cleave requires exclusion of the
                declaration unless Lee validly waived her right to confrontation.         See
                Melendez-Diaz, 557 U.S. at 327; Crawford, 541 U.S. at 53-54.
                NRS 50.315(6) impermissibly burdens confrontation rights
                            The City argues that Lee validly waived her right to confront
                Van Cleave by failing to show a substantial and bona fide dispute
                regarding the declaration as required by NRS 50.315(6). In response, Lee
                argues that MRS 50.315(6) impermissibly burdens the rights provided by
                the Confrontation Clause. Although we previously addressed this issue in
                Walsh, 121 Nev. at 906-07, 124 P.3d at 208, Lee argues that the U.S.
                Supreme Court's decision in Melendez-Diaz compels us to overrule Walsh.
                "Mlle are loath to depart from the doctrine of stare decisis" and will



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                overrule precedent only if there are compelling reasons to do so. Armenta-
                Carpi° v. State, 129 Nev.          , 306 P.3d 395, 398 (2013).
                            A criminal defendant may waive her confrontation rights by
                failing "to comply with statutory procedures" for making an objection
                based on the Confrontation Clause.      Walsh, 121 Nev. at 906, 124 P.3d at
                208; see also Melendez-Diaz, 557 U.S. at 327 ("The defendant always has
                the burden of raising his Confrontation Clause objection."). Under
                existing Nevada law, a defendant waives the right to confront an NRS
                50.315(4) declarant, such as Van Cleave, by failing to comply with NRS
                50.315(6), which provides in relevant part:
                            If, at or before the time of trial, the defendant
                            establishes that:
                                  (a) There is a substantial and bona fide
                            dispute regarding the facts in the affidavit or
                            declaration; and
                                  (b) It is in the best interests of justice that
                            the witness who signed the affidavit or declaration
                            be cross-examined,
                            the court may order the prosecution to produce the
                            witness.
                            In Walsh, we explained that under NRS 50.315(6), failure "to
                argue that a substantial and bona fide dispute exists regarding the
                affidavit or declaration of the phlebotomist who drew the defendant's
                blood . . . acts as a waiver of the defendant's confrontation rights" as to the
                phlebotomist 121 Nev. at 906, 124 P.3d at 208. We further explained
                that "[t]he essence of Crawford is the need for cross-examination," and
                absent a substantial and bona fide dispute regarding the declaration or
                credibility of the declarant, "cross-examination is meaningless."        Id. at
                907, 124 P.3d at 208.


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                            The City argues that this reasoning is unaffected and indeed
                was approved by the U.S. Supreme Court's decision in Melendez-Diaz.' In
                Melendez-Diaz, the Court struck down a Massachusetts statute that
                allowed reports of forensic analysis to be admitted into evidence without
                requiring the prosecution to call the analysts as witnesses but allowing
                defendants to subpoena the analysts. 557 U.S. at 308-09, 329. The Court
                rejected the argument that this statute adequately protected the right to
                confrontation, explaining that the statute "shifts the consequences of
                adverse-witness no-shows from the State to the accused." Id. at 324. The
                Court further explained that "the Confrontation Clause imposes a burden
                on the prosecution to present its witnesses, not on the defendant to bring
                those adverse witnesses into court." Id. However, the Court approved of
                notice-and-demand statutes "[in their simplest form" that require a
                defendant's timely objection to the admission of testimonial hearsay
                without live testimony by the declarant. Id. at 326. The Court explained
                that such provisions are "procedural rules governing objections" that the
                latates are free to adopt." Id. at 327.
                            The City argues that NRS 50.315(6) is such a procedural rule,
                whereas Lee argues that the statute impermissibly imposes on defendants
                the burden of establishing a substantial and bona fide dispute. Although
                we upheld the constitutionality of NRS 50.315(6) against a Confrontation
                Clause challenge in Walsh, we decided Walsh prior to the U.S. Supreme


                      1 While  the Court appears to have approved of Walsh's holding that
                NRS 50.315(4) declarations are testimonial, see Melendez-Diaz, 557 U.S.
                at 325-26 & n.11 (citing Walsh, 121 Nev. at 904-06, 124 P.3d at 207-08), it
                explicitly refused to address the validity of all but the simplest notice-and-
                demand statutes. Id. at 327 n.12.

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                 Court's discussion of notice-and-demand statutes in Melendez-Diaz.          We
                 now address this issue again in light of the U.S. Supreme Court's decision
                 in Melendez-Diaz.
                             The Supreme Court of Kansas has addressed its notice-and-
                 demand statute in light of Melendez-Diaz. State v. Laturner, 218 P.3d 23
                 (Kan. 2009). Under the Kansas statute, a defendant has 14 days to object
                 to admission of a certificate of a person who collected blood for analysis
                 and to state "the grounds for the objection." Kan. Stat. Ann § 22-
                 3437(a)(3). If the grounds for the objection do not show "that the
                 conclusions of the certificate . .. will be contested at trial," the court must
                 admit the certificate into evidence. Id.
                             In Laturner, the Kansas Supreme Court applied Melendez-
                 Diaz to the Kansas statute and found "some overlap" between its statute
                 and simple notice-and-demand statutes, but also found that the Kansas
                 statute "impose lid] additional requirements," most notably that a
                 defendant must show that he would actually contest the conclusions of the
                 certificate at trial. 218 P.3d at 30. The court explained that an objection
                 based solely on the Confrontation Clause could not satisfy this
                 requirement, so a trial court would be bound to admit the evidence over a
                 Confrontation Clause objection.            Id.   Because of this additional
                 requirement, the Kansas court concluded that the statute was not a
                 simple notice-and-demand statute like those approved in Melendez-Diaz.
                 Id. at 32. The Kansas court further reasoned that this additional burden
                 was too difficult for a defendant to overcome without an opportunity to
                 cross-examine the signer of the certificate. Id. at 37.
                             Like the Kansas statute addressed in Laturner, NRS 50.315(6)
                 imposes additional requirements on defendants who wish to confront those

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                    who have prepared declarations to be used against them at trial. While
                    the Kansas statute required a defendant to show that he would actually
                    contest the conclusions of the certificate at trial, NRS 50.315(6) requires a
                    defendant to show a substantial and bona Me dispute regarding the facts
                    contained in the declaration. These requirements are substantially
                    similar, and we conclude that the reasoning of the Laturner court is
                    convincing.
                                  We further conclude that Melendez-Diaz prohibits burdening
                    confrontation rights beyond requiring a defendant's timely objection to
                    proffered evidence. Accordingly, we now hold that MRS 50.315(6)
                    impermissibly burdens confrontation rights because, unlike a "simple"
                    notice-and-demand statute that merely requires a defendant's timely
                    objection, NRS 50.315(6) requires a defendant to establish a substantial
                    and bona fide dispute regarding the facts in the declaration in order to
                    exercise his confrontation rights. A defendant who cannot make• this
                    showing will suffer a forced waiver of his confrontation rights despite a
                    timely attempt to invoke them. Because such an additional burden is
                    impermissible according to the U.S. Supreme Court's decision in Melendez-
                    Diaz, we conclude that MRS 50.315(6) violates the Confrontation Clause.
                                  Principles of stare decisis require a compelling reason to
                    overrule prior caselaw. Artnenta-Carpio, 129 Nev. at , 306 P.3d at 398.
                    We conclude that the additional guidance provided by the U.S. Supreme
                    Court in Melendez-Diaz provides such a compelling reason for overruling
                    our prior decision in Walsh.   Therefore, we now overrule our holding in
                    Walsh that MRS 50.315(6) adequately protects the rights provided by the
                    Confrontation Clause.



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                The nature of the declaration does not alter confrontation rights
                            The City further argues that Melendez-Diaz and Bullcoming v.
                New Mexico, 564 U.S. , 131 S. Ct. 2705 (2011), are inapplicable because
                those cases dealt with reports of forensic analysis, whereas the declaration
                in this case relates only to the collection of blood. In Melendez-Diaz, the
                reports admitted in evidence indicated that the substance seized from the
                defendant contained cocaine, 557 U.S. at 308, and in Bullcoming, the
                report admitted in evidence indicated that the defendant's blood contained
                a particular amount of alcohol. 564 U.S. at , 131 S. Ct. at 2711. Thus,
                in each case, the reports contained conclusory facts that spoke directly to
                the defendant's guilt or innocence.        See id.; Melendez-Diaz, 557 U.S. at
                308. The City argues that this case is distinguishable on two grounds: (1)
                Van Cleave's task of collecting blood was relatively simple, and (2) the
                facts supported by Van Cleave's declaration are merely foundational. We
                conclude that neither distinction is significant.
                            First, the City seeks to distinguish Van Cleave's declaration
                from the reports in Melendez-Diaz and Bullcoming based on the simplicity
                of collecting a blood sample. The City essentially argues that because the
                task was simple, the declaration is reliable and confrontation is
                unnecessary. However, the Confrontation Clause "commands, not that
                evidence be reliable, but that reliability be assessed in a particular
                manner: by testing in the crucible of cross-examination." Melendez-Diaz,
                557 U.S. at 317 (quoting Crawford, 541 U.S. at 61). Therefore, simplicity
                and reliability are not relevant to the Confrontation Clause analysis, and
                the fact that collecting blood may be a simple task has no effect on a
                defendant's right to confront the witnesses against him. See id.
                            Second, the City seeks to distinguish this case from Melendez-
                Diaz and Bullcoming based on the foundational purpose of Van Cleave's
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                 declaration. NRS 484C.250(1)(a)(1) provides that evidence of the results of
                 a blood test are inadmissible in a prosecution for driving under the
                 influence unless the person who collected the blood sample is qualified to
                 do so. A phlebotomist is a qualified person. NRS 484C.250(1)(a)(1). The
                 City argues that Van Cleave's declaration was offered only to show that
                 she was a phlebotomist as required by NRS 484C.250(1)(a)(1), and this
                 merely foundational purpose renders cross-examination meaningless.
                              As discussed above, Van Cleave's declaration is testimonial
                 hearsay, and the Confrontation Clause therefore applies. Walsh, 121 Nev.
                 at 906, 124 P.3d at 208. The U.S. Supreme Court has explained that there
                 are only "two classes of witnesses—those against the defendant and those
                 in his favor .... [T]here is not a third category of witnesses, helpful to the
                 prosecution, but somehow immune from confrontation."          Melendez-Diaz,
                 557 U.S. at 313-14. Here, Van Cleave is clearly a witness "against" Lee
                 because the City sought to use Van Cleave's declaration to prove its case.
                 The City's distinction between foundational facts and conclusory or
                 accusatory ones would create and place Van Cleave into a "third category
                 of witnesses" prohibited by Melendez-Diaz. Id. at 314.
                              We note, however, that Melendez-Diaz does not require the
                 testimony of every person with any connection to physical evidence.     Id. at
                 311 n.1 ("[W]e 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."). The City argues that Van
                 Cleave is merely a person with some connection to Lee's blood sample and
                 thus is not required to testify.



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                              In support of this argument, the City cites Commonwealth v.
                 Shaffer, 40 A.3d 1250 (Pa. Super. Ct. 2012). In Shaffer, "no report
                 authored by the phlebotomist" was offered as evidence, so no testimonial
                 statement was at issue. Id. at 1252. In contrast, Van Cleave's testimonial
                 declaration was offered as evidence in this case. Therefore, Shaffer is
                 unpersuasive. The fact that Van Cleave's declaration was offered only to
                 lay the foundation for other evidence has no effect on its testimonial
                 nature, and therefore has no effect on the rights provided by the
                 Confrontation Clause.
                              Accordingly, the relative simplicity of collecting blood and the
                 foundational purpose for which Van Cleave's declaration was offered as
                 evidence have no effect on the rights provided by the Confrontation
                 Clause. 2
                                                CONCLUSION
                              We conclude that the U.S. Supreme Court's decision in
                 Melendez-Diaz requires us to overrule our prior decision in Walsh, where
                 we held that NRS 50.315(6) adequately protected the rights provided by
                 the Confrontation Clause. Therefore, we now hold that the requirement of
                 NRS 50.315(6)—that a defendant must establish a substantial and bona
                 fide dispute regarding the facts in a declaration made and offered as
                 evidence pursuant to NRS 50.315(4)—impermissibly burdens the right to




                       2 We note that NRS 50.330 and SCR Part IX-A(B), governing
                 appearances by audiovisual transmission equipment, set forth
                 circumstances and procedures to present certain testimony through the
                 use of simultaneous audiovisual transmission equipment.

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                  confrontation. Further, the relative simplicity of collecting blood and the
                  foundational purpose for which the declaration was offered do not affect
                  this conclusion. Therefore, we conclude that the district court did not err
                  when it determined that admission of Van Cleave's declaration into
                  evidence over Lee's objection would have violated Lee's right to
                  confrontation, and the district court did not abuse its discretion by
                  denying the City's petition for a writ of mandamus.
                               Accordingly, we affirm the order of the district court.



                                                          arraguirre

                  We concur:


                                                   C.J.



                                                   J.
                  Pickering


                                                   J.
                  Hardesty


                  Lck
                  Douglas




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