¶26
Baker, J.*(concurring in part and dissenting in part) — I concur with the reasoning and result of Part A of the majority’s opinion but respectfully dissent as to Part B. Like the majority, I would affirm Mr. Kronich’s conviction for driving while under the influence. But, in contrast to the majority’s view, I conclude that a challenge under Crawford3 is fatal to the type of Department of Licensing (DOL) statement made in this case, even when the challenge is made for the first time on appeal. Accordingly, I would reverse the trial court’s ruling admitting the DOL statement and, in turn, would reverse the conviction for driving while license suspended in the third degree.
1. Challenge First Made on Appeal
¶27 The majority cites RAP 2.5(a) and State v. WWJ Corp., 138 Wn.2d 595, 602, 980 P.2d 1257 (1999), and points out that Crawford was decided prior to Mr. Kronich’s trial. The majority then refuses to address the constitutional *548challenge at all. But I respectfully disagree with the majority’s assertion that we should not address a challenge under Crawford just because it is made for the first time on appeal, despite its being a challenge arguably based on a “manifest error affecting a constitutional right.” RAP 2.5(a)(3). I reach this conclusion because I see the constitutional challenge made here as being fairly deemed “manifest.” Id. The record here is sufficient to determine that, had the Crawford challenge been made at trial, it would have resulted in the exclusion of the DOL employee’s testimonial statement. The absence of the DOL statement would, in turn, have been fatal to the State’s case on the charge of driving while license suspended. In other words, Mr. Kronich’s challenge on appeal is one of manifest constitutional error, and the failure to raise it at trial was not harmless error beyond a reasonable doubt.
¶28 I agree that RAP 2.5(a)(3) was “not designed to allow parties a means for obtaining new trials whenever they can identify a constitutional issue not litigated below.” Majority at 545 (citing WWJ Corp., 138 Wn.2d at 602). But it is still important to conduct the inquiry as to whether the claimed constitutional error is “manifest” before declining to address it at all. As enunciated in State v. Scott, 110 Wn.2d 682, 687-88, 757 P.2d 492 (1988):
The exception [to the general rule that issues cannot be raised for the first time on appeal] actually is a narrow one, affording review only of “certain constitutional questions”. Comment (a), RAP 2.5, 86 Wn.2d 1152 (1976). Moreover, the exception does not help a defendant when the asserted constitutional error is harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, [87 S. Ct. 824, ]17 L. Ed. 2d 705 (1967).
We disagree, however, that by deciding that an error is not “manifest”, an appellate court can usefully shortcut the review process. Even the threshold determination of “reviewability” requires diligent attention to the record. Cf. United States v. Young, 470 U.S. 1, 16, [105 S. Ct. 1038, ]84 L. Ed. 2d 1 (1985) (“Especially when addressing plain error, a reviewing court cannot properly evaluate a case except by viewing such a claim against the entire record.”). Thus, no appellate effort is saved *549by cutting off review of those cases in which, reversal is determined to be unnecessary.
The proper way to approach claims of constitutional error asserted for the first time on appeal is as follows. First, the appellate court should satisfy itself that the error is truly of constitutional magnitude — that is what is meant by “manifest”. If the asserted error is not a constitutional error, the court may refuse review on that ground. If the claim is constitutional, then the court should examine the effect the error had on the defendant’s trial according to the harmless error standard set forth in Chapman v. California, supra.
(Footnote and emphasis omitted.)
2. Adequacy of Record for Constitutional Review
¶29 The test of whether an alleged constitutional error is “manifest” involves, in part, whether the record is conducive to review — in other words, whether the record itself “manifests” — or shows — the constitutional error. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
¶30 Here, the record is readily reviewable on the Crawford principle that “testimonial” statements given in a criminal trial without the opportunity of cross-examination by the defendant violate the confrontation clause of the sixth amendment to the United States Constitution. The alleged “testimonial statement” at issue in this case was introduced at trial as exhibit 2. The record on appeal here, then, is in contrast to some cases where for some reason the trial record is not conducive to an adequate review — for example, when a suppression motion implicating the Fourth Amendment was not made and no suppression hearing was held. See, e.g., State v. Baxter, 68 Wn.2d 416, 413 P.2d 638 (1966).
¶31 The record here is sufficient for review of the constitutional error raised.
*550 3. Sixth Amendment Violation
¶32 The next part of the inquiry under RAP 2.5(a)(3) is whether the error is truly of “constitutional magnitude.” McFarland, 127 Wn.2d at 333. I would conclude that it is.
a. N.M.K. is distinguishable
¶33 This case is distinguishable from State v. N.M.K., 129 Wn. App. 155,118 P.3d 368 (2005). There, the language of the DOL “certification” was “ ‘that after a diligent search of computer files there is no document or other evidence . . . to indicate that. . . the [DOL] had issued a valid license to’ ” the defendant. Id. at 163 (alteration in original). Similarly, a post-Crawford federal case on which Division One of this court heavily relied in reaching its decision in N.M.K. — the Fifth Circuit case of United States v. Rueda-Rivera, 396 F.3d 678 (5th Cir. 2005) — involved language in the Immigration and Naturalization Service’s records custodian’s “certification” substantially similar language to that in N.M.K. The certificate in Rueda-Rivera stated that “after a diligent search no evidence [was] found to exist in the records of the Immigration and Naturalization Service of the granting of permission for admission into the United States after deportation.” Rueda-Rivera, 396 F.3d at 679.
¶34 By contrast, in Mr. Kronich’s case, the DOL records custodian said in her letter:
[A]fter a diligent search of the computer files the said official record indicates on November 15, 2000, the following statements apply to the status of the above named person:
Had not reinstated his/her driving privilege. Was suspended/ revoked.
Ex. 2. (emphasis added).
¶35 I would have to conclude that this particular statement is “testimonial,” under the meaning of Crawford, for several reasons.
*551 b. Certifying a copy of a record is different from searching for and finding none
¶36 First, at the risk of appearing overly technical, I must admit to finding it somewhat problematic that both N.M.K. and Rueda-Rivera seem to gloss over a distinction that I deem important. That is the difference between when a records custodian certifies a true and accurate copy of an original on file — a purely ministerial act if there ever was one — and the process someone must go through when ultimately certifying the absence of a record. The certification of the absence of a record begins with a search that is both diligent and knowledgeable and ends with the testimonial statement. The testimonial statement outlines the actions of the records seeker: that he or she knew for what record to search, knew how to find it in the records or database, searched for it diligently, and found no such record.
¶37 In this regard, ER 803(a)(7) — the hearsay exception for absence of a business record — appears to require live testimony concerning the absence of records. That rule states:
(7) Absence of Entry in Records Kept in Accordance With RCW 5.45. Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of RCW 5.45, to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.
¶38 Karl B. Tegland, in his Courtroom Handbook on Washington Evidence, offers the following thoughts pertaining to ER 803(a)(7).
Although the rule does not specifically require the testimony of a custodian or other qualified witness, some courts have read the requirement into the rule. See, e.g., United States v. Rich, 580 F.2d 929 (9th Cir. 1978) [, cert. denied, 439 U.S. 935], A qualified witness would seemingly be necessary to make a *552foundation showing that the business routinely kept records of the information not located, and that the information would have come promptly to the attention of regular record keepers and would have been recorded at that time.
5D Karl B. Tegland, Washington Practice: Courtroom Handbook on Washington Evidence, at 406 (2005). And in his earlier treatise, he went on to say, “[u]nlike the evidence admissible under [chapter 5.45 RCW], evidence admissible under [ER 803(a)(7)] will ordinarily be testimonial.” 5C Karl B. Tegland, Washington Practice: Evidence Law & Practice § 803.44, at 28 (4th ed. 1999) (citing Rich, 580 F.2d 929; United States v. Zeidman, 540 F.2d 314 (7th Cir. 1976)).4
¶[39 I acknowledge that ER 803(a)(10) pertaining to the absence of a public record is worded differently from ER 803(a)(7)’s absence of business records rule. ER 803(a)(10) reads:
Absence of Public Record or Entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.
(Emphasis added.) But this may beg the question, for ER 902 is merely a rule for the self-authentication of public documents themselves, and a careful reading of it gives no hint of approval for the method used in either N.M.K. or Rueda-Rivera for establishing the absence of such a document. True, ER 902 subsections (a), (b), and (d) discuss the “certification” pertaining to records of a state agency apparently referenced in the language of ER 803(a)(10). Yet, nothing approving the N.M.K. type of statement for absence of a *553record can be gleaned from these subsections — at least, not without implicating Crawford, since the “certifications” would still, effectively, be testimonial. Here is what these subsections actually say, in pertinent part:
(a) Domestic Public Documents Under Seal. A document bearing a seal purporting to be that of. . . any state, ... or of a. . . department, officer or agency thereof, and a signature purporting to be an attestation or execution.
(b) Domestic Public Documents Not Under Seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in section (a), having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.
(d) Certified Copies of Public Records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with section . . . (b), or (c) of this rule.
ER 902 (emphasis added). In other words, nothing in the language of ER 902 would provide any authority for bypassing “testimony” to establish that (1) a search was made, and (2) the search revealed no pertinent record.
¶40 But, I do admit that the decisions in N.M.K. and Rueda-Rivera give us license to make what I consider the “jump” from merely certifying the copies of records to certifying the nonexistence of a DOL record. Accepting the holdings in N.M.K. and Rueda-Rivera and applying them to Mr. Kronich’s case, ¿/there had been a proper certification not only of a “true copy” of the order of suspension but also of the absence of a public record of any reinstatement of Mr. Kronich’s driving privilege as of the date in question, Crawford would have been satisfied.
*554¶41 But, as I have pointed out, the facts of Mr. Kronich’s case are different from those in N.M.K. and Rueda-Rivera. See discussion in part 3.a., supra.
c. State v. Smith (2005) is not controlling
¶42 The majority relies on a very recent case decided by our Supreme Court, State v. Smith, 155 Wn.2d 496, 120 P.3d 559 (2005). True, Smith addressed a DOL employee’s statement with language virtually identical to the language in Mr. Kronich’s exhibit 2; and, as at Mr. Kronich’s trial and in the Smith trial, the trial court had overruled a “foundation” objection, and the defendant raised an argument on appeal on another basis.5 But the similarities end there. In Smith, the Supreme Court merely and narrowly held that a trial objection on the basis of “foundation” was inadequate to preserve an issue on appeal based on the hearsay rule. Unlike in the case at bar, in Smith, there was no confrontation clause issue raised by the appellant, much less addressed by our Supreme Court.
¶43 The distinctive factual (even conclusory) statement made by the DOL employee both in Mr. Kronich’s case and in Smith, does, in my view, create an issue in a Crawford context. The DOL custodian’s letter does not say, for example, that her diligent search “revealed no document, record or other evidence of reinstatement,” as in N.M.K. or Rueda-Rivera. Instead, she states, in a conclusory way, that defendant “[h]ad not reinstated [his] driving privilege,” and that the defendant’s driving privilege “[w]as suspended/ revoked.” Ex. 2. While, again, I acknowledge that the distinction may be overly technical, it seems to me to be significant. How does this DOL employee conclude that the privilege has “not [been] reinstated”? How does she conclude that the privilege is still “suspended/revoked”? What*555ever the actions and thought processes leading up to this statement, it is a testimonial statement.6
¶44 Another way of looking at the problem is to ask: Is it not a records custodian’s role merely to state whether or not there are records or documents in her custody which have been filed since the order of suspension, and, if so, to certify a copy of them as true and correct? Or, if we accept the holdings in N.M.K. and Rueda-Rivera, the custodian may apparently go on and “certify” under ER 902 (without being subject to cross-examination) that no such record of any reinstatement was located in her diligent search. Thus, if the DOL employee’s statement in Mr. Kronich’s case had been in the nature of, “I have searched the DOL database, and no record of reinstatement was located as of‘x’ date,” it would clearly pass the post-Crawford rulings enunciated in Rueda-Rivera and N.M.K. But, since it does not, and further, because of what the custodian concludes regarding the status of defendant’s driving privilege, rather than the status of records in her custody, I would have to conclude that the statement is testimonial in nature. The statement tells us what the records mean and what the witness concludes from them, not whether there are records or what, if any, records there are — or are not. The statement is therefore testimonial; it, therefore, implicates the Sixth Amendment confrontation clause under Crawford.
¶45 In conclusion, had there been an objection at trial on the basis of Crawford — which was, after all, decided before the defendant’s trial — I conclude that it would have been error to admit the particular DOL statement at issue in this case.
4. Harmless Error Standard
¶46 Because the Crawford issue was not raised at trial, the final step of the inquiry under RAP 2.5(a)(3) is whether the error in admitting exhibit 2 was harmless beyond a reasonable doubt. McFarland, 127 Wn.2d at 333.
*556¶47 In my view, this portion of the inquiry is quite simple on the record before us. Absent trial exhibit 2, there is no other evidence in the record to suggest that the defendant’s privilege to drive was suspended on the date charged. Mr. Kronich could not have been convicted of driving while license suspended without the admission of exhibit 2. The error of admitting exhibit 2 at trial was not harmless beyond a reasonable doubt. It was, therefore, “manifest error affecting a constitutional right” and subject to reversal when raised for the first time on appeal. RAP 2.5(a)(3); McFarland, 127 Wn.2d at 333.
CONCLUSION
¶48 I agree with the majority that Mr. Kronich’s conviction for DUI should be affirmed; but I would reverse the third degree driving while license suspended conviction and dismiss that charge, with prejudice.
Review granted at 157 Wn.2d 1008 (2006).
Judge Rebecca Baker is serving as a judge pro tempore of the Court of Appeals pursuant to RCW 2.06.150.
Crawford v. Washington, 541 U.S. 36,124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
While the holdings in Rich and Zeidman do not address the Sixth Amendment issues here, and while the opinions in those cases do not address the concerns I have about the lack of guidance provided by ER 902, both cases appear to stand for the requirement of at least some form of live testimony in order for evidence of absence of a business record to be admissible. See ER 803(a)(10), ER 902.
In addition, at Mr. Kronich’s trial, in response to the foundation objection, the State asserted that ER 902 made the “record” self-authenticating, and defense counsel acceded.
It may also be a legal conclusion, or at least an opinion on an ultimate fact offered by a nonexpert, but these are subjects for another day.