dissenting.
I agree with the majority that lab reports are testimonial statements subject to Sixth Amendment protections. However, I disagree with the majority's holding that section 16-3-309(5), C.R.S. (2006),9 can be constitutionally applied without a proper waiver. In People v. Mojica-Simental, we unanimously concluded that section 16-8-309(5) is facially constitutional because it may be applied when the right of confrontation is properly waived. 73 P.3d 15, 20 (Colo.2008). After Crawford v. Washington, 541 U.S. 36, 50, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the only cireumstance in which section 16-3-309(5) can be constitutionally applied is through a proper waiver of the right to confrontation. I continue to believe that only a voluntary, knowing, and intentional waiver by the defendant or his attorney can operate to properly waive a defendant's fundamental right to confront witnesses. By eliminating the requirement of a voluntary, knowing, and intentional waiver, the majority has eliminated the condition upon which the constitutionality of section 16-3-809(5) was predicated. The majority has therefore overruled the basic foundation of Mojica-Simental, leaving its holding that section 16-3-809(5) is facially constitutional an empty shell without any basis or support. I therefore respectfully dissent.
I.
A statute is facially unconstitutional only if there are no cireumstances in which it can be applied constitutionally. People v. Vasquez, 84 P.3d 1019, 1021 (Colo.2004). In Mojica-Simental, we held that there was at least one cireumstance under which section 16-3-309(5) could be constitutionally applied. 73 P.3d at 20. That cireumstance was if the defendant voluntarily, knowingly, and intentionally waived his fundamental right to confront witnesses. Id. at 21. Because there was a circumstance under which the statute could be applied constitutionally, we held it was facially constitutional. Id. at 20. Thus, though Mojica-Simental is divided into a section addressing facial constitutionality and another section addressing as-applied constitutionality, the two sections cannot be severed from each other. We held, as part of our facial constitutional analysis, that without a voluntary, knowing, and intentional waiver, section 16-8-809(5) could not be applied constitutionally. Id. Similarly, we held that trial courts could constitutionally apply the statute by addressing the reliability concerns protected by the Sixth Amendment or by ensuring the defendant properly waived his rights. The majority has overruled Mojica-Simen-tal's analytical foundation by discarding the requirement of a voluntary, knowing, 'and intentional waiver, and leaving it without the central premise upon which the holding of facial constitutionality is dependent.
A.
"It is universally recognized that some constitutional rights are sufficiently fundamental to share the procedural safeguards concerning voluntary, knowing and intentional waiver." People v. Curtis, 681 P.2d 504, 511 (Colo.1984). The right to confront witnesses is one of these fundamental rights. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (cited in Mojica-Simental, 73 P.3d at 20). We therefore held in Mojica-Simental that a defendant's waiver of the right to confront witnesses must be voluntary, knowing, and intentional, whether given by the defendant or his attorney." *672Mojica-Simental, 73 P.3d at 20; see Curtis, 681 P.2d at 514.10
In Mojica-Stmental we relied on Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), and held that under certain cireumstances section 16-3-309(5) could be applied constitutionally and provided a number of factors for a trial court to weigh before admitting a lab report pursuant to the statute. 73 P.3d at 20-21. Because a proper waiver would allow the statute to be applied constitutionally, we found it facially constitutional. See Vasquez, 84 P.3d at 1021.
In 2004, the United States Supreme Court decided Crawford v. Washington and overruled Roberts 541 U.S. at 50, 124 S.Ct. 1354. In Crawford, the United States Supreme Court held that the principal evil at which the Confrontation Clause was directed was the use of ex parte examinations as evidence against the accused. Id. The only testimonial statements that may be admitted at trial against a defendant are those in which the defendant had a prior opportunity for cross-examination. In overruling the balancing tests spawned by Roberts, including our own, the Supreme Court held that "[the] reliability [of testimonial statements must] be assessed in a particular manner: by testing in the erucible of cross-examination." Id. at 61, 100 S.Ct. 2531; see id. at 63, 100 S.Ct. 2531 (overruling People v. Farrell, 34 P.3d 401, 406-407 (Colo.2001) and Stevens v. People, 29 P.3d 305, 316 (Colo.2001) (establishing multi-factor reliability tests under Roberts )). Thus, the possibility we left open in Mojica-Simental, that through a balancing test trial courts could constitutionally apply the statute, was firmly closed by Crawford.
After Crawford, section 16-8-809(5) can be constitutionally applied only if the defendant either: (1) cross-examines the lab technician, or (2) properly waives his right to confronta-. tion. See United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (noting that fundamental rights can be waived or forfeited). Thus, post-Crawford, Mojica-Simental's waiver requirement has become even more important because it is now the only manner in which the statute can be applied constitutionally without ecross-ex-amination.
Exactly like the ex parte affidavits Crawford eliminated, lab reports, and all other testimonial statements made by unavailable witnesses not subject to cross-examination, should be excluded unless the defendant has the prior opportunity to cross examine, or the right has been properly waived. The Sixth Amendment makes no distinction between types of testimonial statements. Lab reports, like witness statements to police, see Raile v. People, 148 P.3d 126, 133 (Colo.2006), and child sexual assault statements, see People v. Moreno, 160 P.3d 242, 246 (Colo.2007), are subject to the protection of the Sixth Amendment alike. See maj. op. at 665-67 (finding lab reports testimonial). The Sixth Amendment does not allow any written testimonial statements to be admitted except through cross-examination or a voluntary, knowing, and intentional waiver. A defendant's constitutional protections, therefore, cannot be bypassed by a set of presumptions resulting in an automatic waiver.
B.
Today, the majority replaces Mojica-Si-mental's requirement of a voluntary, knowing, and intentional waiver with an automatic waiver premised upon an irrebuttable presumption. Under the majority's logic, if the ten day notice period required by the statute passes, then the defendant or his attorney is presumed to both know the law and therefore to have waived the defendant's rights. The majority applies its presumption in this case even though there is evidence rebutting it. The majority has thereby created an irrebuttable presumption of waiver that applies automatically upon the passage of the ten-day time frame.
The majority begins its analysis by stating: "[Wle presume that attorneys know the applicable rules of procedure." Maj. op. at 670.11 However, in this case the attorney did *673not know about the statute's notice requirement. Thus, the presumption, having been rebutted, should no longer have any force or effect.
Despite the state of the record reflecting the attorney's actual ignorance of the law, the majority applies the presumption and creates the legal fiction that the attorney "knew" of the statute's requirements. No explanation is given as to why the presumption that the attorney knew the law was not rebutted by the evidence. In effect, the majority creates an irrebuttable presumption by applying the presumption of knowledge of the law when the attorney said on the record that he was unaware of the law.12
Even if one were to accept the irrebuttable presumption as a replacement for a "knowing" waiver, the majority has still not provided a constitutionally sufficient explanation for how unknowing inaction amounts to an "intentional" waiver. The "knowing" element of a constitutional waiver is different and separate from the "intentional" element. People v. Mozee, 723 P.2d 117, 122 (Colo.1986) (quoting Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (distinguishing between the knowing element and intentional element of a constitutionally sufficient waiver). Furthermore, an effective intentional waiver requires actual, not presumed, knowledge of what is being waived. Id. The defendant must be "fully aware of what he is doing and must make a conscious, informed choice to relinquish the known right.13 Id. The "waiver" presumed by the majority here is therefore fundamentally inadequate.
Furthermore, this is not, as the majority states, a matter of timing. Maj. op. at 668. The waiver of the right to examine a witness at trial, when the witness has just finished testifying for the prosecution, is clearly a voluntary, knowing, and intentional waiver. The judge provides the defendant with an actual and immediate opportunity to ask questions at that moment and the defendant either proceeds or waives. The record thus contains a clear indication of a voluntary, knowing, and intentional waiver. Any resemblance between a waiver created by a legally fictitious irrebuttable presumption contradicted by the actual facts and a waiver created by choosing not to examine a witness who just finished testifying at trial is therefore purely illusory. Construing the issue as a matter of timing does not, therefore, resolve the serious concerns raised by the majority's use of presumptions.
We have long held that a presumption favoring the prosecution in criminal cases raises serious due process concerns. Jolly v. People, 742 P.2d 891, 896 (Colo.1987) (recognizing that the use of presumptions relieves the prosecution of its constitutionally mandated burden of proof). In contrast, there is a strong presumption against a presumption of waiver by the defendant of a fundamental constitutional right. People v. Alengi, 148 P.3d 154, 159 (Colo.2006). Courts should allow for "every reasonable presumption *674against waiver" and should not presume a defendant agrees with the loss of a fundamental right. Barker v. Wingo, 407 U.S. 514, 525, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (emphasis added); People v. Arguello, 772 P.2d 87, 93 (Colo.1989). In the context of the right to counsel,14 if a "record is silent regarding the issue of waiver, no presumption cam arise." Arguello, 772 P.2d at 93 (citing Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962)). The right to confront witnesses is hardly different; though defendants need not personally waive this right, that does not justify undermining the Sixth Amendment's fundamental constitutional protections.
It is contrary to fundamental principles of constitutional law to hold that, because defendants need not personally waive a fundamental right, they are subject to an irre-buttable presumption that operates to automatically waive a fundamental right without any voluntary, knowing, and intentional act by the attorney. The majority has effectively eliminated the only basis upon which section 16-3-809(5) is facially constitutional-the requirement that a fundamental right be waived through a voluntary, knowing, and intentional waiver. Thus, the majority has effectively overruled Mojica-Si-mental's essential holdings, and its rationale threatens to undermine our other recent cases holding that fundamental rights may only be voluntarily, knowingly, and intentionally waived.15 See Alengi, 148 P.3d 154, 159 (Colo.2006) (holding that waiver of right to counsel must be voluntary, knowing, and intelligent); People v. Isaacks, 133 P.3d 1190, 1195 (Colo.2006) (holding that waiver of right to jury trial must be voluntary, knowing, and intentional).
IL.
This case illustrates why a voluntary, knowing, and intentional waiver must be required before applying section 16-8-809(5). The trial court applied the statute to overrule the defendant's objection to the admission of the lab report. The defendant's need for personal testimony thereafter became apparent: the report was ambiguous about the weight of the drugs. It listed the weight of the "tan tape wrapped block" as 1004.5 grams, but omitted whether the weight included the tape and packaging or was just the net weight of the drugs. The weight of the drugs was a significant fact. The maximum sentence for a class three felony possession with intent to distribute less than one thousand grams is sixteen years in prison.16 The maximum sentence for one thousand grams or more is twenty-four years in prison.17 Thus, a critical fact at trial was the net weight of the drugs. Because the lab technician failed to testify, the jury was deprived of this important testimony, and Hinojos-Men-doza lost his right to confront the evidence against him. As a result, Hinojos-Mendoza was exposed to a higher maximum sentence.
The officer who did testify about the report could not answer whether the weight listed on the report was the net weight of the drugs or if it included the tape because he was not the lab technician. Despite this *675ambiguity, and based on weight of the drugs listed in the report, Hinojos-Mendoza was exposed to a higher maximum sentence. Thus, he may have received a higher sentence simply because he was unable to challenge a statement contained within the report. Such a result, if arrived at in a capital case and weighing heavily in favor of death, would be unacceptable. It is equally unse-ceptable in a drug case where test results or procedures are potentially unreliable or ambiguous. The crucible of eross examination provides a critical bulwark against unreliable evidence and unfair trials. Crawford, 541 U.S. at 67-68, 124 S.Ct. 1354. Thus, the admission of the report was a violation of Hinojos-Mendoza's fundamental constitutional rights and constitutes reversible error. .
IIL.
The constitutionality of section 16-8-309(5) depends upon a voluntary, knowing, and intentional waiver by the defendant or his attorney. Because the majority has eliminated this requirement, I dissent.
. The statute states that information in a lab report has the same weight as in-person testimony and only permits cross-examination of the lab technician if the defendant gives ten days notice. § 16-3-309(5).
. Contrary to the majority's statement otherwise, Mojica-Simental does not require that "the defendant personally make[] a voluntary ... waiver." Maj. op. at 669 (emphasis added). In fact, we specifically recognized the attorney's role in complying with the statute when listing the factors courts should consider before excluding reports: "whether an aftorney or a pro se litigant actually knew that he was required to notify the opposing party of his desire to have the *672witness present." Mojica-Simental, 73 P.3d at 21.
. Interestingly, the majority relies on Christie v. People, 837 P.2d 1237 (Colo.1992) as direct support for this critical part of its argument, but *673then distinguishes Christie as inapplicable to the resolution of this case in a footnote to the next sentence. Maj. op. at 669-70 & n. 6. Furthermore, though Christie supports the majority's position, the sentence cited to is buried in the middle of a paragraph addressing a separate issue and was made without any citation or support of any kind. 837 P.2d at 1244. It provides little weight to the majority's most important assumption.
. If the majority does not believe that the attorney did not know of the statute, it should remand the case to the trial court to test the credibility of his assertion. Since the majority did not remand the case, it is possible it may have instead engaged in its own determination of the credibility of the attorney's statement at trial that he was not aware of the statute. It is not our role to weigh the credibility of witnesses. People v. Pitts, 13 P.3d 1218, 1221 (Colo.2000). The majority's decision to disbelieve the attorney here contradicts this long-held rule.
. None of the out-of-state cases cited by the majority involve defendants who were unaware of the statute in question. In fact, the statutes involved in those cases required that the prosecution notify the defendant of the reports before the statute's deadline. Thus, proper waiver requires notice before it can be voluntary, knowing, and intentional. Of the cases cited by the majority, only City of Las Vegas v. Walsh, 121 Nev. 899, 124 P.3d 203 (2005), cert. denied, 547 U.S. 1071, 126 S.Ct, 1786, 164 L.Ed.2d 519 (2006), has been appealed to the United States Supreme Court and this case presents a different issue than Walsh. Further, as the majority has noted, state courts are split on this issue and some statutes similar to ours have been struck down as unconstitutional because they lacked notice requirements. Maj. op. at 668-69.
. The majority accepts there is a connection between the right to effective assistance of counsel and counsel's waiver of his client's fundamental rights. Maj. op. at 670.
. The majority here, comprised of members of the court that reached the unanimous conclusion that a fundamental right must be properly waived for the statute to be constitutional, now characterizes Mofica-Simental's holdings as "dicta." Maj. op. at 668-69. However, the majority offers no reason for why it believes our holding was dicta. The as-applied language the . majority now overrules as dicta is in its own full and complete section of the opinion, separately and explicitly addressed by us, and agreed upon unanimously. It was not an aside we added as a cautionary or advisory language; we intended that trial courts actually follow its instructions. As I have already shown, without a proper waiver, as described in the as-applied section, the statute cannot be applied constitutionally. If it cannot be applied constitutionally, then the statute is facially unconstitutional. The two sections are therefore inseparable.
. § 18-18-405(3)(a)(II), CRS. (1998) (requiring a sentence at least in the midpoint of the presumptive range for drugs weighing at least four hundred fifty grams but less than one thousand grams).
. § 18-18-405(3)(a)(III), C.R.S. (1998) (requiring a sentence higher than the maximum presumptive range for drugs weighing one thousand grams or more}.