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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Derry District Court No. 2006-013 THE STATE OF NEW HAMPSHIRE v. BRIAN T. O'MALEY Argued: April 5, 2007 Opinion Issued: September 5, 2007 Kelly A. Ayotte, attorney general (Susan P. McGinnis, assistant attorney general, on the brief and orally), for the State. Paul J. Garrity, of Londonderry, on the brief and orally, for the defendant. DALIANIS, J. Following a bench trial in Derry District Court (Coughlin, J.), the defendant, Brian T. O'Maley, was convicted of driving while under the influence of intoxicating liquor (DWI). See RSA 265:82 (2004); RSA 265:82-b (Supp. 2006). We affirm.

I.

Background

The record supports the following: On August 1, 2005, the thenseventeen-year-old defendant was driving his father's vehicle on Mammoth Road in Derry, when he crashed into a telephone pole and mailbox post,

injuring his head and damaging the vehicle. The Londonderry police found the defendant and a severely damaged vehicle at his parents' home. The two officers who spoke with him testified that they detected an odor of alcohol emanating from him and that he said that he had been drinking and driving. Eventually, the police arrested the defendant for DWI and transported him by ambulance to a hospital for treatment. At the hospital, an officer reviewed an administrative license suspension form with the defendant and his parents. The defendant signed the form and agreed to have blood drawn for an alcohol concentration test. A medical technician then drew the blood sample and completed a blood sample collection form. The form indicated the technician's name, title and employer, identified the non-alcoholic cleanser used on the area from which the blood was taken, and stated that the technician had withdrawn a blood sample from the defendant "for the purpose of analysis as authorized under RSA 265:85, I, and in accordance with Administrative Rule He-P 2202." See RSA 265:90, IV (2004); see also N.H. Admin. Rules, Saf-C 6402.2 (formerly N.H. Admin. Rules, He-P 2202). The officer then took the blood sample to the police department, where it was placed in a refrigerated locker. See N.H. Admin. Rules, Saf-C 6402.6. On August 5, 2005, the sample was taken to the state police forensic laboratory in Concord, where, on August 16, 2005, an analyst tested it. See N.H. Admin. Rules, Saf-C 6402.07-6402.10. Dr. Michael Wagner, the assistant laboratory director, reviewed the test results to ensure that both the sample and results complied with applicable administrative rules, and calculated the reported value of the blood test results. See N.H. Admin. Rules, Saf-C 6402.11, 6402.12, 6402.14. Dr. Wagner testified that the final report, which he prepared, showed that the defendant's blood alcohol content was .14 grams per one hundred milliliters or "a .14." Neither the technician who drew the blood nor the analyst who originally tested it testified at trial. On appeal, the defendant argues that by allowing the blood sample collection form and Dr. Wagner's testimony about the blood test results to be admitted at trial, the trial court violated his rights under the State and Federal Confrontation Clauses. He also asserts that admitting Dr. Wagner's testimony about the blood test results into evidence was error because the State failed to show that his blood was collected and tested in accord with applicable regulations.

II.

Compliance with Administrative Regulations

"Because we decide cases upon constitutional grounds only when necessary," State v. Wall, 154 N.H. 237, 244 (2006), we begin with the defendant's assertion that the trial court erred when it admitted Dr. Wagner's 2

testimony about the blood test results into evidence because the State failed to demonstrate that the blood was collected and tested in compliance with applicable regulations. "Generally, we accord considerable deference to a trial court's evidentiary rulings and will only intervene when they demonstrate an unsustainable exercise of discretion." State v. Belton, 150 N.H. 741, 743, cert. denied, 543 U.S. 674 (2004). Under this standard of review, we review only whether "the record establishes an objective basis sufficient to sustain the discretionary judgment made." State v. Lambert, 147 N.H. 295, 296 (2001). "Unless a party establishes that such a ruling was clearly untenable or unreasonable to the prejudice of the party's case, it will not be disturbed." Belton, 150 N.H. at 743. RSA 265:85, IV (2004) provides, in pertinent part, "No tests of blood . . . authorized by RSA 265:84 shall be considered as evidence in any proceeding before any administrative officer or court unless such test is performed in accordance with methods prescribed by the commissioner of the department of safety." The defendant asserts that because the people who collected and tested his blood did not testify, the State failed to prove that the collection and testing satisfied applicable regulations. To the contrary, with respect to collecting his blood, RSA 265:90, IV permits the State to satisfy its burden of proof by submitting the blood sample collection form. This statute provides: A copy of the appropriate form filled out and signed by the person who took the sample for the alcohol concentration test in question shall be admissible evidence that the sample was taken by such person at the stated time on the stated date according to the procedures prescribed in the rules adopted by the commissioner of the department of safety pursuant to RSA 265:85, V. By submitting the blood sample collection form, the State sufficiently proved that the defendant's blood was collected in compliance with applicable regulations. See RSA 265:90, IV; see also N.H. Admin. Rules, Saf-C 6402.02. With respect to testing the blood, Dr. Wagner testified that certain qualifying tests were run before the sample was tested to ensure that the test results met applicable State regulations. He also testified that the administrative rules promulgated by the New Hampshire Department of Safety regarding how blood samples must be handled and tested have been incorporated into how the laboratory processes the sample. He further testified that these regulations were followed with respect to the defendant's blood sample.

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For instance, N.H. Admin. Rules, Saf-C 6402.09 sets forth the requirements pertaining to blood tests for alcohol concentration. It requires that a blood sample submitted for determination of alcohol concentration be tested by gas chromatography. N.H. Admin. Rules, Saf-C 6402.09. It also sets forth the various steps in the process by which a blood sample must be tested. See id. Upon review of the analyst's notes at trial, Dr. Wagner testified that all of these steps had been completed. Dr. Wagner's testimony also indicated that the analyst recorded all of the information related to the testing of the defendant's blood sample that is required by N.H. Admin. Rules, Saf-C 6402.10. Whatever deficiencies or weaknesses there might have been in the State's proof of compliance with the regulations "affect[ed] the weight of the evidence but [did] not determine its admissibility." State v. Caswell, 146 N.H. 243, 246 (2001) (quotation omitted). Accordingly, we conclude that the trial court did not err by admitting the blood test results on the ground that the State failed to prove that the collection and the testing of the blood complied with pertinent regulations.

III.

Harmless Error

We next address the State's assertion that any error in admitting the blood sample collection form and Dr. Wagner's testimony about the blood test results constituted harmless error. It is well settled that an error is harmless only if it is determined, beyond a reasonable doubt, that the verdict was not affected by the error. State v. Pseudae, 154 N.H. 196, 202 (2006). The State bears the burden of proving that an error is harmless. Id. An error may be harmless beyond a reasonable doubt if the alternative evidence of a defendant's guilt is of an overwhelming nature, quantity or weight and if the inadmissible evidence is merely cumulative or inconsequential in relation to the strength of the State's evidence of guilt. Id. In making this determination, we consider the alternative evidence presented at trial as well as the character of the inadmissible evidence itself. Id. We hold that the State has failed to establish harmless error. "[T]o prove the defendant guilty of driving while intoxicated, the State was required to prove beyond a reasonable doubt that the defendant drove or attempted to drive a vehicle upon a way while he was under the influence of intoxicating liquor." State v. Wiggin, 151 N.H. 305, 308-09 (2004) (quotation omitted); see RSA 265:82, I. "To prove that the defendant was under the influence of intoxicating liquor, the State need only prove impairment to any degree." Wiggin, 151 N.H. at 309 (quotations omitted). The alternative evidence of the defendant's guilt included the following: The defendant was involved in a single-car accident and admitted to having 4

been drinking and driving. The officer who first responded to the scene detected a strong odor of alcohol coming from his person. Another officer who responded sometime later testified that she also smelled alcohol on the defendant's person. On the other hand, both officers testified that the defendant was not swaying. One of the officers also testified that the defendant's eyes did not appear to be red or glassy. Moreover, the defendant was not asked to complete any field sobriety tests. Given this record, we cannot conclude that the admission of the blood sample collection form and Dr. Wagner's testimony about the blood test results was harmless beyond a reasonable doubt. See State v. Lorton, 149 N.H. 732, 733-35 (2003). The alternative evidence of the defendant's guilt was not so overwhelming that the blood sample collection form and blood test results were merely cumulative or inconsequential. See Pseudae, 154 N.H. at 202.

IV.

Constitutional Issues

Because we are unable to resolve this appeal on non-constitutional grounds, we next address the defendant's claims under the State and Federal Confrontation Clauses. A. State Constitution We begin with the State's argument that the defendant has not preserved his State Confrontation Clause argument. To trigger a state constitutional analysis, an appellant must: (1) raise the state constitutional issue in the trial court; and (2) specifically invoke a State constitutional provision in his or her brief. State v. MacElman, 154 N.H. 304, 310 (2006). Because the defendant has failed to demonstrate that he raised a state constitutional issue in the trial court, we conclude that he has not preserved his State Confrontation Clause argument for appellate review. See State v. Dellorfano, 128 N.H. 628, 633 (1986). We, therefore, decline to consider his State Confrontation Clause argument and limit our review to his claims under the Federal Confrontation Clause. B. Federal Constitution

The Sixth Amendment to the Federal Constitution provides, "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." Relying upon Crawford v. Washington, 541 U.S. 36, 68 (2004), the defendant asserts that admitting the blood sample collection form and Dr. Wagner's testimony about the blood test results, absent the testimony of those who withdrew and tested his blood or proof of their 5

unavailability and his opportunity for prior cross-examination, violated his rights under the Federal Confrontation Clause. See U.S. CONST. amends. VI, XIV. 1. Crawford and Davis

Before Crawford, the United States Supreme Court had ruled that admitting certain out-of-court statements did not violate the Confrontation Clause provided that they bore "adequate indicia of reliability." Ohio v. Roberts, 448 U.S. 56, 66 (1980) (quotation omitted). "Reliability [could] be inferred without more in a case where the evidence [fell] within a firmly rooted hearsay exception," or bore "particularized guarantees of trustworthiness." Id.; see State v. Ayer, 154 N.H. 500, 505 (2006), petition for cert. filed, __ U.S.L.W. _____ (U.S. Apr. 26, 2007) (No. 06-11028). In Crawford, the court overruled Roberts, holding that out-of-court testimonial statements are inadmissible under the Federal Confrontation Clause unless the witness is unavailable at trial and the defendant had a prior opportunity to cross-examine him or her. Crawford, 541 U.S. at 68. As the court explained, "Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of `reliability.'" Id. at 61. The crucial determination under Crawford as to whether an out-of-court statement violates the Confrontation Clause is whether it is "testimonial" or not. Id. at 51; see Davis v. Washington, 126 S. Ct. 2266, 2273 (2006). Only "testimonial" statements cause a declarant to be a "witness" within the meaning of the Confrontation Clause. Davis, 126 S. Ct. at 2273. A witness, explained the court in Crawford, is a person who "bear[s] testimony." Crawford, 541 U.S. at 51 (quotation omitted). "Testimony, in turn, is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id. (quotations omitted). Thus, "[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Id. The Court observed that there were "[v]arious formulations" of the "core class of `testimonial' statements," which included: (1) "ex parte in-court testimony or its functional equivalent

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