 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                   DIVISION ONE

STATE OF WASHINGTON,
                                                     No. 69613-1-1
                     Respondent,
                                                     ORDER DENYING MOTION
              v.                                     FOR RECONSIDERATION,
                                                     WITHDRAWING OPINION,
MARK TRACY MECHAM,                                   AND SUBSTITUTING
                                                     OPINION
                     Appellant.


       The appellant, Mark Mecham, has filed a motion for reconsideration of the

published opinion filed on April 21, 2014. The State has filed a response. The

court has determined that said motion should be denied and that the opinion filed

on April 21, 2014 shall be withdrawn and a substitute    published opinion be filed.

Now, therefore, it is hereby

       ORDERED that the motion for reconsideration is denied; it is further

       ORDERED that the opinion filed on April 21, 2014, is withdrawn and a

substitute   published opinion shall be filed.

       DATED this V)           day of   ~JUr)JL^-        2014.




                                                    V^eoi<^R,4 ,

                                                                                        :-~cr


                                                                                   CO
                                                                                   c~
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                              )         No. 69613-1-1
                     Respondent,
                                              )         DIVISION ONE
              v.

                                              )         PUBLISHED OPINION            yzn        '2c iv *"

MARK TRACY MECHAM,
                                                                                      ro         °-"";
                                                                                      Is" *.•
                     Appellant.               )         FILED: June 23, 2014


       Appelwick, J. — At Mecham's trial for felony driving under the influence, the

State introduced Mecham's refusal to perform a field sobriety test as substantive

evidence of his guilt. Mecham argues that the State impermissibly penalized him for

exercising his constitutional right to refuse consent to a field sobriety test. Mecham also

makes a confrontation clause challenge to the admission of a certification of mailing on

his license revocation order. We affirm.


                                           FACTS


       On May 15, 2011, Officer Scott Campbell observed Mark Mecham driving in

Bellevue, Washington. Campbell pulled Mecham over after he ran a random license

check and discovered an outstanding warrant. He did not see Mecham drive unsafely

or commit any traffic infractions.
No. 69613-1-1/2




       While arresting Mecham, Officer Campbell noticed that Mecham appeared

intoxicated.   Campbell observed that Mecham's breath smelled of alcohol, his

movements were sluggish, and his speech was slurred and repetitive.

       Campbell asked Mecham to perform a voluntary field sobriety test. The standard

field sobriety test has three components.       First, it involves the horizontal gaze

nystagmus test, in which the person must follow a moving object with the eyes while the

officer looks for involuntary jerking movements. Second, it includes the "walk and turn,"

where the person must take several heel-to-toe steps on a line. And, finally, it involves

standing on one leg while counting out loud.

       Mecham declined to perform the field sobriety test.

       Campbell noticed that Mecham's car doors were open and unlocked, with the

keys still in the ignition, so he offered to secure Mecham's car. Mecham told Campbell

just to shut the doors, but not to go in his car. When Campbell approached to shut the

doors, he noticed an open beer can with a straw in it behind the passenger seat.

       Campbell transported Mecham to the Bellevue booking facility. Once there, he

read Mecham the implied consent warnings and asked Mecham to submit to a breath

test. Mecham refused.

       At the police station, Officer Darrell Moore helped Campbell draft an application

for a search warrant to test Mecham's blood alcohol content.         Officer Moore also

smelled intoxicants on Mecham's breath.        He noticed that Mecham's speech was

slurred, his eyes were glazed and bloodshot, and his pupils were dilated despite the

bright room.      Based on these observations, Moore also believed Mecham to be

impaired.
No. 69613-1-1/3



          Once they obtained a warrant, the officers took Mecham to Overlake Hospital for

a blood draw. A lab assistant drew Mecham's blood approximately three hours after his
arrest.


          A forensic toxicologist, Rebecca Flaherty, analyzed Mecham's blood.           She

reported that his blood alcohol content was 0.05 grams per 100 milliliters (g/100 ml).

She testified that, based on the rate alcohol is metabolized in the body, Mecham likely

had a blood alcohol level of 0.065 g/100 ml within two hours after he stopped driving,

and possibly as high as 0.08 g/100 ml.1         While alcohol affects people differently,

Flaherty explained, most people cannot safely drive with a blood alcohol content of 0.05

g/100 ml.

          On August 25, 2011, the State charged Mecham with one count of felony driving

under the influence (DUI). On October 23, 2012, the State amended the information to

add two misdemeanor charges: driving while license suspended/revoked in the first

degree (DWLS) and violation of ignition interlock. RCW 46.20.342(1 )(a), .740. Mecham

requested a bench trial on the two misdemeanors. The felony DUI charge was tried by

a jury.

          Mecham stipulated that Officer Campbell made a lawful stop and arrest.

Mecham also stipulated that, at the time of his arrest, he had previously been convicted

of four or more prior offenses within 10 years, pursuant to RCW 46.61.5055(14)(a).

          The trial court denied repeated defense motions to suppress Mecham's refusal to

perform a field sobriety test. The court ruled that even if the field sobriety test amounted

          1 RCW 46.61.502(1) specifies that a person is driving under the influence of
alcohol when "within two hours after driving," the individual has "an alcohol
concentration of 0.08 or higher as shown by analysis of the person's breath or blood."
No. 69613-1-1/4



to a search, it was justified by probable cause. The court likewise rejected Mecham's

proposed jury instruction that his refusal could not be used as evidence of guilt.

       Mecham also proposed an alternative "to convict" jury instruction for the felony

DUI, which stated, "In order to return a verdict of guilty, you must unanimously find from

the evidence that each of [the felony DUI] elements has been proven beyond a

reasonable doubt."    The trial court declined to give Mecham's proposed instruction.

Instead, the court gave a to convict instruction consistent with the Washington Pattern

Jury Instructions:

              If you find from the evidence that [the felony DUI elements] have
       been proven beyond a reasonable doubt, then it will be your duty to return
       a verdict of guilty.

              On the other hand, if, after weighing all the evidence, you have a
       reasonable doubt as to any one of [these elements], then it will be your
       duty to return a verdict of not guilty.

See 11A Washington Practice: Washington Pattern Jury Instructions: Criminal

92.02, at 274 (3d ed. 2008).

       In closing, the State argued that Mecham refused to participate in field sobriety

testing in order to frustrate and delay the investigation. Several other times in closing

the State argued that Mecham refused the field sobriety test, because he knew it would

reveal his guilt.

       At the bench trial on the misdemeanors, the trial court admitted an order from the

Washington State Department of Licensing (DOL) revoking Mecham's driver's license
No. 69613-1-1/5



from October 29, 2010 until August 11, 2013.            The revocation order contains a

certification of mailing in the bottom right corner, which reads:

       I certify under penalty of perjury under the laws of the state of Washington
       that I caused to be placed in a U.S. Postal Service mail box, a true and
       accurate copy of this document to the person named herein at the address
       shown which is the last address of record. Postage prepaid on September
       14, 2010inOlympia, WA.

       [/s/] Elizabeth A. Lfillegible]

       Agent for the Department of Licensing

       The court admitted the revocation order as a DOL business record pursuant to

testimony from Abdul Qaasim, a DOL custodian of records. Qaasim explained that he

searched the DOL records for information on Mecham and determined that Mecham

was a habitual traffic offender. Qaasim also found the revocation order in his research

and testified to the date of revocation. However, the person who signed the certification

of mailing did not testify. Mecham objected on confrontation clause grounds. The trial

court ruled that Mecham did not have a right to confront the person who signed the

certification of mailing.

       The jury found Mecham guilty of felony DUI. The trial court found Mecham guilty

of first degree DWLS and violation of ignition interlock. Mecham timely appealed.

                                         DISCUSSION


       Mecham makes three arguments on appeal. First, he asserts that a field sobriety

test constitutes an unreasonable search under the Fourth Amendment to the United

States Constitution and article I, section 7 of the Washington Constitution. As a result,

he argues, the State improperly penalized him for exercising his constitutional right to

refuse consent to a field sobriety test by commenting on his refusal at trial. Second, he
No. 69613-1-1/6




argues that the to convict instruction given at his felony DUI trial violated his

constitutional right to a jury trial. And, third, he argues that the certification of mailing on

the license revocation order constitutes testimonial hearsay and its admission violated

his right to confront the witnesses against him.

  I.   Field Sobriety Test

       Mecham argues that the trial court erred in admitting evidence that he refused to

perform to a field sobriety test.2 The State then used this as evidence of Mecham's guilt

at trial. Mecham argues that a field sobriety test constitutes a search under the Fourth

Amendment and article I, section 7. Therefore, he argues, the State's comment on his

refusal to perform a field sobriety test unfairly penalized him for exercising his

constitutional right to refuse consent to a warrantless search. When a trial court denies

a motion to suppress, we review the trial court's conclusions of law de novo. State v.

Winterstein, 167 Wn.2d 620, 628, 220 P.3d 1226 (2009).

       Field sobriety tests are not governed by Washington's implied consent statute,

RCW 46.20.308. Nevertheless, in Washington, there is "no legal obligation to perform a

field sobriety test." City of Seattle v. Personeus, 63 Wn. App. 461, 465-66, 819 P.2d


       2 Mecham also assigns error to the trial court's admission of evidence that he
declined Officer Campbell's offer to secure his car. However, Mecham does not devote
argument as to why this constituted an unconstitutional search that must be
suppressed. Herring v. Dep't of Soc. & Health Servs.. 81 Wn. App. 1, 13, 914 P.2d 67
(1996) ("Assignments of error not supported by legal argument are not considered on
appeal."). Even if Campbell noticing the beer can in Mecham's backseat constituted a
search, it clearly falls within the plain view exception to the warrant requirement. See
State v. Rose. 128 Wn.2d 388, 399, 401., 909 P.2d 280 (1996) (no constitutional
violation when police officer looked through an unobstructed window of a home while
standing on the front porch). Furthermore, Mecham did not object to the evidence on
Fourth Amendment or article I, section 7 grounds. We therefore review it for manifest
constitutional error, which Mecham fails to demonstrate. RAP 2.5(a)(3).
No. 69613-1-1/7




821 (1991). Unlike blood and breath alcohol tests, however, a suspect's right to refuse

a field sobriety test is based in common law and not specifically protected by statute.

City of Seattle v. Stalsbroten. 138 Wn.2d 227, 236-37, 978 P.2d 1059 (1999).

       The Washington Supreme Court held in Stalsbroten that admitting evidence of a

suspect's refusal to perform a field sobriety test does not violate the Fifth Amendment,

because refusal is neither testimonial nor compelled. ]d. at 238-39. The question here

is whether admitting refusal as evidence of guilt violates article I, section 7 and the

Fourth Amendment.3        This turns on whether a field sobriety test constitutes an

unreasonable search.


   A. Reasonableness of a Field Sobriety Test

       Mecham argues that a field sobriety test constitutes a search under article I,

section 7 and the Fourth Amendment, because it reveals private information that is not

voluntarily exposed to public view, it affords the police an intrusive method for viewing

that private information, and it is designed to elicit evidence.

       Article I, section 7 provides that "[n]o person shall be disturbed in his private

affairs, or his home invaded, without authority of law." The provision safeguards "those

privacy interests which citizens of this state have held, and should be entitled to hold,

safe from governmental trespass." State v. Mvrick, 102 Wn.2d 506, 510-11, 688 P.2d

151 (1984). The Fourth Amendment protects "[t]he right of the people to be secure in


      3 The Washington Supreme Court previously stated that a field sobriety test need
not be suppressed, because "the seizure and questioning were reasonable under the
Fourth Amendment and Wash. Const, art. I, § 7." Heinemann v. Whitman County. 105
Wn.2d 796, 809, 718 P.2d 789 (1986). However, the Heinemann court did not devote
any analysis to the Fourth Amendment or article I, section 7 before concluding there
was no need to suppress on that basis.
No. 69613-1-1/8



their persons, houses, papers, and effects, against unreasonable searches and

seizures." Distinct from article I, section 7, the Fourth Amendment focuses on whether

an individual has a reasonable expectation of privacy. Terry v. Ohio. 392 U.S. 1, 9, 88

S. Ct. 1868, 20 L. Ed. 2d 889 (1968). It is well established that article I, section 7

qualitatively differs from the Fourth Amendment, because it places a greater emphasis

on privacy. State v. Surge. 160 Wn.2d 65, 70-71, 156 P.3d 208 (2007).

       For the purposes of this opinion, we assume that a field sobriety test constitutes

a search under both article I, section 7 and the Fourth Amendment. See State v. Nagel.

320 Or. 24, 31, 36, 880 P.2d 451 (1994) (holding that a field sobriety test constitutes a

search under the Oregon Constitution and the Fourth Amendment).

      As a general rule, we presume that warrantless searches are unreasonable and

violate both constitutions.   State v. Gatewood. 163 Wn.2d 534, 539, 182 P.3d 426

(2008). However, the State may rebut this presumption by showing that a search falls

within one of the narrow exceptions to the warrant requirement.       State v. Day. 161

Wn.2d 889, 893-94, 168 P.3d 1265 (2007).

      One such exception is an investigative detention, or Terry stop.        Id. at 895.

Officers may briefly, without a warrant, detain a person to investigate whether a crime

has been committed. Id A Terry stop is lawful if the State can point to specific and

articulable facts giving rise to a reasonable suspicion that the person stopped is, or is

about to be, engaged in criminal activity. State v. Kinzv. 141 Wn.2d 373, 384-85, 5 P.3d

668 (2000).

      Whether the officer's suspicion is reasonable is determined by the totality of the

circumstances known to the officer at the inception of the stop. Gatewood, 163 Wn.2d


                                               8
No. 69613-1-1/9




at 539; State v. Glover. 116 Wn.2d 509, 514, 806 P.2d 760 (1991).           This includes

factors such as the officer's training and experience, the location of the stop, the

conduct of the suspect, the purpose of the stop, the amount of physical intrusion upon

the suspect's liberty, and the length of time the suspect is detained. State v. Acrev. 148

Wn.2d 738, 747, 64 P.3d 594 (2003). The degree of intrusion must also be appropriate

to the type of crime under investigation and the probable dangerousness of the suspect.

State v. Wheeler. 108 Wn.2d 230, 235, 737 P.2d 1005 (1987).

       Here, the totality of the circumstances justified Officer Campbell's reasonable

suspicion that Mecham was driving while intoxicated.                Mecham's probable

dangerousness is obvious: a drunk driver presents a grave danger to the public.4 See
South Dakota v. Neville. 459 U.S. 553, 558, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983)

(recognizing the carnage and tragedy caused by drunk drivers); see also RCW

46.55.350(1 )(a).

       Mecham showed clear signs of intoxication.         Officer Campbell testified that

Mecham's movements were sluggish and his speech was slurred and repetitive.

Campbell also noticed that Mecham's breath smelled of alcohol and "overall he

appeared intoxicated." Campbell based this conclusion on his DUI training and his five

years of experience as a police officer. He explained that he had made around 50 DUI

arrests and conducted 50 to 100 field sobriety tests during his career.




       4 "[T]he threat to public safety posed by a person driving under the influence of
alcohol is as great as the threat posed by a person illegally concealing a gun." State v.
Superior Court. 149 Ariz. 269, 275, 718 P.2d 171 (1986); see also Blasi v. State. 167
Md. App. 483, 510, 893 A.2d 1152 (2006).

                                                9
No. 69613-1-1/10




       There is some physical intrusion with a field sobriety test.    The tests involve

unusual physical maneuvers that require balance and coordination.         They have the

potential to reveal information about the suspect's medical conditions or physical

disabilities. Nagel. 320 Or. at 36.

       However, the degree of intrusion is not excessive and a field sobriety test is an

appropriate technique to measure the suspect's intoxication.           Officer Campbell

explained that he uses a standardized field sobriety test promulgated by the National

Highway Traffic Safety Administration. The three main components of this test are the

horizontal gaze nystagmus test, the heel-to-toe "walk and turn," and balancing on one

foot while counting.

       The horizontal gaze nystagmus test looks for involuntarily jerking of the eyes that

occurs only when someone has been drinking or using certain drugs. The other two

components gauge the suspect's ability to listen, comprehend instructions, and perform

simple tasks involving balance.       Officer Campbell agreed that these tests are very

useful tools for investigating DUI. Officer Moore likewise testified that a field sobriety

test is useful in determining whether a person is driving impaired. Moore explained that

field sobriety tests are psychophysical tests, which means they test the body and mind

simultaneously.    Such divided attention is necessary to effectively operate a vehicle,

and being intoxicated impairs that ability.

       Given these facts, we conclude that the field sobriety test is a brief and

reasonable method for determining whether an individual is intoxicated. The attendant

intrusion was therefore appropriate given Campbell's training and Mecham's evident

intoxication. We hold that Campbell's request for Mecham to perform a field sobriety


                                                10
No. 69613-1-1/11




test was justified under the Terry stop exception to the warrant requirement.5 Thus,

even if the field sobriety test constituted a search, it was reasonable based on the

totality of the circumstances.

   B. State's Comment on Mecham's Refusal

       Our final determination is whether the State impermissibly commented on

Mecham's refusal to perform a field sobriety test.       Mecham argues that under this

court's decision in State v. Gauthier. 174 Wn. App. 257, 298 P.3d 126 (2013), an

individual's refusal to consent to a warrantless search may not be admitted as evidence

of guilt without violating article I, section 7 and the Fourth Amendment.

       In Gauthier. a detective asked the defendant for a cheek swab of his DNA

(deoxyribonucleic acid) before obtaining a warrant or court order, jd. at 261. The

defendant refused,     id.   The State argued at trial that this refusal indicated the

defendant's consciousness of guilt. \j± at 262. We held that the State's argument

impermissibly burdened the defendant's constitutional right to refuse consent to a

warrantless search and seizure of his DNA. ]cL at 267.




       5 At least 12 other states have held that a field sobriety test is permissible under
Terry when the officer has reasonable suspicion that the driver is intoxicated. See, e.g..
Superior Court. 149 Ariz, at 274; State v. Lamme, 216 Conn. 172, 176-77, 184, 579
A.2d 484 (1990); State v. Taylor. 648 So. 2d 701, 703-04 (Fla. 1995); State v. Golden.
171 Ga. App. 27, 30, 318 S.E.2d 693 (1984); State v. Wvatt. 67 Haw. 293, 687 P.2d
544, 552-53 (1984); State v. Pick. 124 Idaho 601, 605. 861 P.2d 1266 (1993); State v.
Stevens. 394 N.W.2d 388, 391-92 (Iowa 1986); Blasi. 167 Md. App. at 509-10; State v.
Little. 468 A.2d 615, 617-18 (Me. 1983); Commonwealth v. Blais. 428 Mass. 294, 297-
98, 701 N.E.2d 314 (1998); Columbus v. Anderson. 74 Ohio App. 3d 768, 771-72, 600
N.E.2d 712 (1991); see also McCormick v. Mun. of Anchorage. 999 P.2d 155, 160
(Alaska Ct. App. 2000).

                                                11
No. 69613-1-1/12




       Distinct from Mecham's case, the reasonableness of the search in Gauthier was

premised on the defendant's consent. See id at 263. Without consent and without a

warrant, the detective had no authority to search the defendant's DNA and any search

would have been unreasonable. See id The Gauthier court made clear that "[t]he

constitutional violation was that Gauthier's lawful exercise of a constitutional right was

introduced against him as substantive evidence of his guilt." Id at 267. In other words,

the State may not penalize someone for exercising a constitutional right. ]d

       By contrast, in State v. Nordlund. the defendant refused to provide a body hair

sample even though the State had a court order to collect hair samples from him. 113

Wn. App. 171, 187, 53 P.3d 520 (2002).        The State argued at trial that this refusal

showed the defendant's consciousness of guilt. Id The appellate court held that it was

reasonable to infer guilt from the defendant's refusal when there was a valid court order

allowing body hair sampling. Id at 189. In sum, the defendant had no constitutional

right to refuse consent, because the search was reasonable pursuant to the court order.

See id Reading Gauthier and Nordlund together indicate that the State's comment on

refusal is impermissible only when there is a constitutional right to refuse consent.

       Mecham did not have a constitutional right to refuse consent to the field sobriety

test, because the test was reasonable pursuant to a Terry stop. Mecham had only a

common law right to refuse consent to the field sobriety test. Stalsbroten. 138 Wn.2d at

237.   Such refusal is not testimonial under Stalsbroten. but "'is best described as

conduct indicating a consciousness of guilt.'" ]d at 234 (quoting Newhouse v. Misterlv.

415 F.2d 514, 518 (9th cir. 1969)).




                                                12
No. 69613-1-1/13




       We hold that the State did not impermissibly comment on Mecham's refusal to

perform the field sobriety test, because there was no constitutional right for Mecham to

refuse the test.6

 II.   To Convict Jury Instruction

       Mecham argues that his constitutional right to a jury trial was violated when the

trial court instructed the jury that it had a duty to convict if it found each element of

felony DUI proved beyond a reasonable doubt.          Mecham asserts that the instruction

misstates the law, because the jury always has the power to acquit and the court cannot

direct a verdict. Therefore, he argues, no such duty to return a guilty verdict exists.

       Each division of this court has rejected similar challenges to the same to convict

instruction that Mecham contests here. See, e.g.. State v. Meggyesy. 90 Wn. App. 693,

706, 958 P.2d 319 (1998) (Division One); State v. Brown. 130 Wn. App. 767, 771, 124

P.3d 663 (2005) (Division Two); State v. Wilson. 176 Wn. App. 147, 151, 307 P.3d 823

(2013) (Division Three), review denied 179 Wn.2d 1012, 316 P.3d 495 (2014).

       Most recently, we rejected the same issue in State v. Moore.          Wn.2d        , 318

P.3d 296, 299 (2014). There, the jury was instructed, "'If you find from the evidence that

each of these elements has been proved beyond a reasonable doubt, then it will be

your duty to return a verdict of guilty.'" ]d at 297 (emphasis in original). We held,

              This is a correct statement of the law. Jurors have a duty to apply
       the law given to them. This instruction does not invade the province of the
       jury nor otherwise violate a defendant's right to a jury trial. The trial court
       does not err in giving the instruction when requested.

       6 See also Neville. 459 U.S. at 566 (holding that due process is not violated when
the government commented on the defendant's refusal to submit to a blood alcohol test,
because the government did not mislead the defendant into believing his refusal could
not be used against him in a later trial).

                                                 13
No. 69613-1-1/14




jd at 299. Moore reaffirms and upholds the "duty to convict" language. Id Therefore,

we affirm the to convict instruction given at Mecham's trial, because it is substantively

identical to the one given in Moore.

 III.    Certification of Mailing

         Mecham argues that the certification of mailing on the license revocation order is

testimonial hearsay that violates the confrontation clause for two reasons. U.S. Const.

amend. VI; Wash. Const, art. I, § 22.       First, he argues that it contains an ex parte

statement made for the purpose of establishing the essential fact that the revocation

order was mailed to him. Second, a reasonable person would anticipate the certification

to be used in a legal proceeding, because it was sworn under penalty of perjury. As a

result, Mecham argues, his DWLS conviction must be reversed.

         We review alleged confrontation clause violations de novo. State v. Jasper. 174

Wn.2d 96, 108, 271 P.3d 876 (2012). When there is a violation, we review for harmless

error,   jd   The State must show beyond a reasonable doubt that the error did not

contribute to the verdict. Id at 117.

         A person accused of a criminal offense has the right to confront the witnesses

against him. U.S. Const, amend. VI; Wash. Const, art. I, § 22. Thus, a witness may

not testify against a defendant unless that witness appears at trial or the defendant has

a prior opportunity for cross-examination. Melendez-Diaz v. Massachusetts. 557 U.S.

305, 309, 129 S. Ct. 2527, 174 L Ed. 2d 314 (2009).

         Testimony is typically a '"solemn declaration or affirmation made for the purpose

of establishing or proving some fact.'" Crawford v. Washington. 541 U.S. 36, 51, 124 S.

Ct. 1354, 158 L. Ed. 2d 177 (2004) (quoting 2 N. Webster, An American Dictionary of


                                                14
No. 69613-1-1/15



the English Language (1828)). Testimonial statements subject to confrontation include

ex parte in-court testimony or its functional equivalent, such as affidavits, depositions,

prior testimony, or confessions. ]d at 51-52. Put another way, a testimonial statement

is "'made under circumstances which would lead an objective witness reasonably to
believe that the statement would be available for use at a later trial.'" Jd at 52 (quoting

Br. for National Association of Criminal Defense Lawyers et al. as Amicus Curiae 3).

       The Washington Supreme Court recently considered whether certifications

attesting to the existence or nonexistence of DOL records are testimonial. Jasper. 174

Wn.2d at 102, 104, 108. Two defendants were charged with DWLS. ]d at 101, 103. In

both cases, the State introduced into evidence an affidavit from a DOL records

custodian. Id at 101, 104. Both affidavits stated that, after a diligent search, the official

DOL records indicated that the defendants' licenses were suspended or revoked on the

date of their offenses.    ]d    On appeal, the defendants argued that these affidavits

constituted testimonial certifications, subject to the confrontation clause.      Id at 100.

The Washington Supreme Court agreed. Id at 116.

       The Jasper court based its holding on the United States Supreme Court's

decision in Melendez-Diaz.      Id at 111. The Melendez-Diaz Court considered whether

certificates of analysis were testimonial statements. 557 U.S. at 308. The certificates

reported results of a forensic analysis establishing that a seized substance was cocaine.

Id. The Court held that the certificates were "quite plainly affidavits," falling squarely

within the core class of testimonial statements described in Crawford. ]d at 310. The

certifications were "functionally identical to live, in-court testimony" and used for the sole

purpose of establishing a fact at trial. ]d at 310-11.


                                                 15
No. 69613-1-1/16




       In light of Melendez-Diaz. the Jasper court held that the affidavits from the DOL

records custodians were clearly testimonial statements.          174 Wn.2d at 115.        The

affidavits were created and used for the sole purpose of establishing critical facts at trial.

Id. They served as substantive evidence against the defendants, whose guilt depended

on the nonexistence of the DOL record for which the clerk searched.         Id   Because the

defendants were not given the opportunity to cross-examine the officials who authored

the affidavits, their admission violated the confrontation clause, jd at 116.

       Here, the certification of mailing is a sworn statement, made under penalty of

perjury. This would lead an objective witness to reasonably believe that the certification

would be used at a later trial. And, it is difficult to say that such a sworn statement does

not meet the definition of testimony in Crawford: a solemn declaration or affirmation

made for the purpose of establishing or proving some fact. 541 U.S. at 51.

       However, the certification of mailing was not created or used for the sole purpose

of establishing an essential fact at trial. The elements of first degree DWLS are: (1) the

defendant was driving in Washington; (2) his privilege to drive was revoked at the time;

and (3) the revocation was based on his status as a habitual traffic offender.          RCW

46.20.342(1)(a). In Jasper, the affidavits were offered to prove the essential fact that

the defendants' licenses were suspended at the time of their offenses. 174 Wn.2d at

117-19. By contrast, the fact of mailing is not an element of the crime to be proved at

trial. Rather, mailing goes to whether the license revocation complied with due process.




                                                 16
No. 69613-1-1/17




       In a DWLS prosecution, the State must prove that a license revocation order

complied with due process.7 City of Redmond v. Arrovo-Murillo. 149 Wn.2d 607, 612,

70 P.3d 947 (2003). However, the validity of the revocation order is a legal question for

the court, not an element of the crime. See State v. Miller. 156 Wn.2d 23, 31, 123 P.3d

827 (2005). The court, not the trier of fact, must make this threshold determination of

validity. Id. The right to confrontation is a trial right and is not implicated in such pretrial

proceedings. State v. Fortun-Cebada. 158 Wn. App. 158, 172-73, 241 P.3d 800 (2010).

Therefore, the fact of mailing is neither subject to the confrontation clause, nor an

essential fact to be proven at a DWLS trial.

       By the same token, the certification of mailing is not hearsay, because it was not

introduced for the truth of the matter asserted.         Crawford. 541 U.S. at 59-60 n.9

(recognizing that the confrontation clause does not bar admission of testimonial

statements not introduced for the truth of the matter asserted). The revocation order

was admitted at trial to show that Mecham's license was revoked on the date of his

offense. It was not admitted to show the fact of mailing. The DOL records custodian,

Qaasim, did not discuss the certification, and it was not relevant to his testimony.

       For the same reasons, even if the certification of mailing was testimonial hearsay

subject to the confrontation clause, its admission was harmless. Qaasim testified that

he researched Mecham's DOL records. He explained that the order revoking Mecham's

license was in effect on May 15, 2011, the date of Mecham's offense. Qaasim further


       7 Indeed, Mecham moved to dismiss the DWLS charge on due process grounds
before trial. He argued that the State failed to take additional steps to notify him of the
revocation, even though the DOL knew of another address for him prior to the
revocation taking effect. Mecham does not renew any due process challenge on
appeal.


                                                  17
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testified that the DOL records showed Mecham was a habitual traffic offender. This

testimony established the second and third elements of first degree DWLS. Mecham

had the opportunity to cross-examine Qaasim, though he declined to do so. The

certification of mailing did not go to fact to be proved at trial. As such, its admission was

harmless.


       We hold that the certification of mailing was properly admitted.

      We affirm.




WE CONCUR:




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