¶26 (concurring) — There is a critical difference between certifying the existence of a public record and certifying the nonexistence of a public record. The latter certification is prepared for trial, and instead of *890certifying contents of a record, it serves as a vehicle to introduce facts not contained within the public records themselves. For this reason, certifications such as the one at issue here are testimonial, implicating the confrontation clause of the Sixth Amendment.15 However, in this case, admission of the certification that Nathan Kirkpatrick did not have a driver’s license was an error that was harmless. Thus, I concur in the result reached by the majority.
Alexander, C.J.*890¶27 The confrontation clause bars admission of “testimonial” hearsay evidence 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, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The United States Supreme Court has declined to provide a definition for the term “testimonial,” but it has offered some guidance as to which hearsay statements are testimonial. Business records, for example, are not testimonial. Id. at 56. The high court has also implied that certified public records are not testimonial. See id. at 76 (Rehnquist, C.J., concurring) (stating that the majority would find “official records” nontestimonial); Davis v. Washington, 547 U.S. 813, 825, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) (citing with approval a case concluding certified “facts regarding conduct of [a] prior trial” were not testimonial). However, formal statements that are intended to be used to establish a fact at trial are testimonial. See Crawford, 541 U.S. at 51; Davis, 547 U.S. at 822-23, 826. They are essentially “ ‘a weaker substitute for live testimony’ at trial.” Davis, 547 U.S. at 828 (quoting United States v. Inadi, 475 U.S. 387, 394, 106 S. Ct. 1121, 89 L. Ed. 2d 390 (1986)). As the majority points out, “[i]n Crawford, the [United States Supreme] Court suggested that business records are non-testimonial in part because they are not prepared with an eye toward trial.” Majority at 884 (emphasis added) (citing Crawford, 541 U.S. at 51-52).
¶28 Unlike the case of State v. Kronich, 160 Wn.2d 893, 161 P.3d 982 (2007), in which a record existed that indi*891cated Kronich’s driver’s license was suspended, no public record existed prior to this case stating that Kirkpatrick did not have a license. Instead, a Department of Licensing (DOL) employee conducted a search and prepared a certification on this point for trial. The majority concedes that the certification itself “was probably not kept in the normal course of DOL business.” Majority at 885. The majority does not consider this a problem, though, because the certification addresses a document that would have been created in the regular course of business, had it existed.
¶29 I disagree with the majority. The certification here did not merely relate a fact that existed within records kept pursuant to statute and in the regular course of the DOL’s business. Instead, a DOL representative interpreted the inability to locate a record for Kirkpatrick as meaning he did not have a license. Rather than certifying a public record, the DOL representative in essence certified a search. By offering the certification, the State sought to admit the representative’s conclusion into evidence to prove an element of the State’s case, while insulating that conclusion from cross-examination regarding the search methods used or other possible interpretations of the absence of a record. As such, the certification was certainly a weaker substitute for live testimony and, thus, testimonial. Since the representative who signed the certification was neither unavailable nor previously subject to cross-examination by Kirkpatrick, admission of the certification violated Kirkpatrick’s constitutional right to confrontation.
¶30 In addition, contrary to the majority’s claim, requiring the DOL representative to testify would further the truth-seeking process toward which the confrontation clause is directed. Allowing Kirkpatrick to cross-examine the representative about his search methods would shed light on the likelihood of error and any possibility that a record actually existed without being found. It would also encourage DOL employees to perform more extensive searches before concluding there is no evidence of a driver’s license, thus decreasing the likelihood of a record being overlooked.
*892¶31 However, this court has previously ruled that violations of the confrontation clause are subject to harmless error analysis. State v. Davis, 154 Wn.2d 291, 304, 111 P.3d 844 (2005) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986); State v. Smith, 148 Wn.2d 122, 138-39, 59 P.3d 74 (2002)), aff’d, 547 U.S. 813 (2006). Confrontation clause error is harmless beyond a reasonable doubt where untainted evidence is also admitted and “the untainted evidence admitted is so overwhelming as to necessarily lead to a finding of guilt.” Id. at 305 (citing Smith, 148 Wn.2d at 139 (citing State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985))).
¶32 Here, Kirkpatrick admitted to an Enumclaw police officer that he did not have a driver’s license. In addition, as the majority notes, the record indicates that Kirkpatrick was 15 at the time of the reckless driving incident. Since RCW 46.20.031(1) prohibits the DOL from issuing a driver’s license to a person under the age of 16, Kirkpatrick could not have possessed a valid driver’s license at the time. In light of this evidence, the certification from DOL was unnecessary, and its erroneous admission was harmless. Consequently, I concur with the majority’s disposition of this case and affirm the Court of Appeals, albeit on different grounds.
¶33 (concurring) — I agree with Chief Justice Alexander’s concurrence that certifying the nonexistence of a public record that is “intended to be used to establish a fact at trial [is] testimonial.” Concurrence (Alexander, C.J.) at 890. Therefore admitting the certification as to the absence of a driver’s license violated Nathan Kirkpatrick’s right to confrontation. But Chief Justice Alexander ultimately finds this error harmless because of overwhelming untainted evidence. Id. at 892.1 write separately to note the error was harmless only because it did not relate to a disputed element of the crime.
Sanders, J.¶34 Error is harmless only when it does not involve relevant evidence properly presented to the jury. “ [I]t is impossible for courts to contemplate the probabilities any *893evidence may have upon the minds of the jurors.” State v. Robinson, 24 Wn.2d 909, 917, 167 P.2d 986 (1946). The assumption a court “can determine what evidence or instruction influenced the jury’s decision” is “a tacit admission that an appellate court is necessarily engaging in fact-finding.” Dennis J. Sweeney, An Analysis of Harmless Error in Washington: A Principled Process, 31 Gonz. L. Rev. 277, 279 (1995-96). And we “have no right to trench upon the province of the jury upon questions of fact.” Jensen v. Shaw Show Case Co., 76 Wash. 419, 421, 136 P. 698 (1913); see Wash. Const, art. I, § 21; U.S. Const, amend. VI (guaranteeing trial by jury).
¶35 But “if the disputed evidence or instruction does not relate to a disputed issue, it is likely to be harmless. This factor is based on the rational assumption that such [evidence] should not have influenced jury deliberations.” Sweeney, supra, at 304. Nathan Kirkpatrick admitted to a police officer he did not have a driver’s license. Accordingly, while the evidence should not have been admitted because it was testimonial, the error was harmless because the issue was not in dispute.
I concur.
U.S. Const, amend. VI.