State v. Rafeh

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.