concurring.
I write separately to address the question of whether it violates a DUI defendant's right of confrontation when the government relies on hearsay reports to establish that the breath test machine was properly calibrated at the time of the defendant's breath test.
I acknowledge that this Court's lead opinion correctly characterizes the case law on this issue. Both before and after the United States Supreme Court's decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 *294S.Ct. 2527, 174 L.Ed.2d 314 (2009), courts from around the country have overwhelmingly concluded that breath test calibration reports are not "testimonial" for purposes of the confrontation clause, and thus the government can introduce these reports without presenting the live testimony of the people who wrote the reports.
See State v. Lindner, 227 Ariz. 69, 252 P.3d 1033, 1035-36 (App.2010); Jacobson v. State, 306 Ga.App. 815, 703 S.E.2d 376, 379 (2010); State v. Kramer, 153 Idaho 29, 278 P.3d 431, 434-38 (App.2012); People v. Jacobs, 405 Ill. App.3d 210, 345 Ill.Dec. 335, 939 N.E.2d 64, 72 (2010); Ramirez v. State, 928 N.E.2d 214, 219-220 (Ind.App.2010); State v. Johnson, 43 Kan.App.2d 815, 233 P.3d 290, 299 (2010); Commonwealth v. Zeininger, 459 Mass. 775, 947 N.E.2d 1060, 1067-1070 (2011); Matthies v. State, 85 So.3d 838, 843-44 (Miss.2012); People v. Hulbert, 93 A.D.3d 953, 939 N.Y.S.2d 661, 662-63 (N.Y.App.2012); People v. Pealer, 89 A.D.3d 1504, 933 N.Y.S.2d 473, 474-75 (2011); State v. Bergin, 231 Or.App. 36, 217 P.3d 1087, 1089-1090 (2009); Commonwealth v. Dyarman, 33 A.3d 104, 107-08 (Pa.App.2011); Settlemire v. State, 323 S.W.3d 520, 521-22 (Tex.App.2010); United States v. Forstell, 656 F.Supp.2d 578, 580-82 (E.D.Va.2009). See also State v. Britt, 283 Neb. 600, 813 N.W.2d 434, 439 (2012) (holding that the certification of the alcohol solution used to test the calibration of the breath test machine is not testimonial).
Several of these cases rely on footnote 1 of the Melendez-Diaz opinion:
Contrary to the dissent's suggestion|[,] ... we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case.... [DJocu-ments prepared in the regular course of equipment maintenance may well qualify as nontestimomial records. See infra, at 2550-2551, 2552.
Melendez-Diaz, 557 U.S. at 311 n. 1, 129 S.Ct. at 2532 n. 1 (emphasis added).
Yet despite the judicial consensus on this issue, I find this result troubling for the reasons explained in Justice David Chandler's dissent in Matthies v. State, 85 So.3d 838, 844-47 (Miss.2012).
When a court allows the government to offer these certificates of calibration in hearsay form, the court is in effect saying, "We can trust the state officials who filled out these certificates-specifically, we can trust their assertions that the breath test machine was working properly-because this is just another business record kept by the government."
But a breath test machine is not just another piece of equipment that the government maintains in the course of its operations. Rather, a breath test machine has a single primary function: to identify motorists whose blood alcohol level exceeds the legal limit, and who can therefore be prosecuted for driving under the influence. In many instances, it is undisputed that the defendant was operating a motor vehicle, so a convietion is virtually assured if the government introduces evidence that the defendant's breath test result was .08 percent or greater.
Under Alaska law, i#f the government wishes to introduce the defendant's breath test results, the government must first offer proof that the breath test machine was properly calibrated.1 Thus, the calibration reports have one primary purpose: to provide the needed evidentiary foundation for introducing breath test results in criminal prosecutions.
In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 LEd.2d 177 (2004), the Supreme Court stated that the category of "testimonial" hearsay included "statements . made under cireumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later [criminal] trial." Id., 541 U.S. at 52, 124 S.Ct. at 1364.
And in Melendez-Diaz, the Supreme Court held that the defendant's right of confrontation was violated when the government introduced three "certificates of analysis" prepared by the crime laboratory-certificates *295attesting that the substance found in the defendant's possession was cocaine. The Court held that these certificates fell within the "core class of 'testimonial statements" covered by the confrontation clause, and did not constitute exempt "business records", because the government's primary reason for creating these certificates was to use them in court proceedings. Id., 129 S.Ct. at 2532-33, 2536, 2538.
If this is the test, then there is a good argument that certificates or reports attesting that a breath test machine is properly calibrated are likewise "testimonial" for Sixth Amendment purposes. The argument for treating these calibration reports as "testimonial" is considerably strengthened by the fact that the government does not store the defendant's breath sample, thus making it impossible for the defendant or their attorney to re-run the breath test and thereby challenge the government's breath test result.
However, I join my colleagues in rejecting this claim of error because I conclude that, under Alaska law, the potential confrontation problem is cured by the Alaska Supreme Court's decision in Gundersen v. Anchorage, 792 P.2d 673 (Alaska 1990). In Gundersen, the supreme court held that, under the due process clause of the Alaska Constitution, a driver arrested for driving under the influence has the right to a reasonable opportunity to challenge the accuracy of a police-administered breath test-either by having the government preserve the breath sample for later re-testing, or by having the government immediately offer the arrested motorist the opportunity for an independent chemical test. Id. at 675-77.
The Gundersen decision prompted the Alaska Legislature to enact AS 28.35.083(e):
[The arrested motorist] may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of the person's own choosing administer a chemical test in addition to the test administered at the direction of a law enforcement officer.... The [officer] who administers the chemical test shall clearly and expressly inform the [motorist] of [the motorist's] right to an independent test described under this subsection, and, if the [motorist] requests an independent test, the department shall make reasonable and good-faith efforts to assist the [motorist] in contacting a person qualified to perform an independent chemical test of the [motorist's] breath or blood.
Because of Gundersen and because of AS 28.35.088(e), I conclude that McCarthy's right of confrontation was preserved even though the State was allowed to introduce the hearsay calibration reports.
. See AS 28.35.033(d) and 13 AAC 63.100(c).