Criminal law -- Driving under influence -- Evidence -- Hearsay --Exceptions -- Public records and reports -- Business records --Confrontation of witnesses -- Testimonial out-of-court statements --Admission of those portions of breath test affidavit pertaining to breath test operator's procedures and observations in administrating the breath test constitute testimonial evidence and violate the Sixth Amendment's Confrontation Clause in light of U.S. Supreme Court's holding in Crawford v. Washington -- Breath test affidavit is testimonial in nature -- Affidavit was created by technician solely for purpose of proving a critical element in defendant's DUI prosecution -- General rule that records kept in ordinary course of business are generally admissible does not apply when record is being prepared at specific request of law enforcement agency and is not simply a record that is normally generated by that business under circumstances that do not involve law enforcement -- In case at issue, it was error to admit those portions of breath test affidavit pertaining to breath test technician's procedures and observations in administering the test -- Although state met its burden of showing that breath technician who prepared affidavit was not available for trial, Crawford's requirement that defendant have prior opportunity for cross-examination was not satisfied -- Discovery deposition does not serve as functional substitute for in-court confrontation of witness and, accordingly, defendant did not waive opportunity to cross-examine technician by failing to depose her under rule 3.220(h)-- Although statute gives defendant a right to subpoena breath test operator as adverse witness at trial, this provision does not adequately preserve defendant's Sixth Amendment right to confrontation -- Moreover, burden of proof lies with state, not defendant -- Appeals -- Certiorari -- No merit to state's argument that district court erred in granting certiorari because the circuit court's decision did not violate a “clearly established principle of law,” an argument based on state's contention that law was not clearly established because the Crawford decision refrained from defining testimonial statement   Reported at 33 Fla. L. Weekly S279a

Criminal law -- Evidence -- Hearsay -- Exceptions -- Business records -- Confrontation of witnesses -- Testimonial statements --Lab reports and similar materials, when prepared for criminal trials, are testimonial statements and their admission without the preparer's testimony runs afoul of U.S. Supreme Court's holding in Crawford v Washington and the Confrontation Clause -- In the instant case, the trial court erred in admitting Florida Department of Law Enforcement lab report under business record exception when the person who performed the lab test did not testify -- District court properly held that the report, while admittedly a business record, was clearly prepared in anticipation of trial and meant to establish an element of the charged offense, the illegal nature of the substances possessed by the defendant -- Report was inadmissible where state failed to show unavailability of witness who performed the lab test   Reported at 33 Fla. L. Weekly S265a

Criminal law -- Evidence -- Hearsay -- Testimonial statements -- Rule set forth in Crawford v. Washington, which provides that testimonial hearsay is inadmissible in a criminal prosecution unless the declarant is unavailable and the accused has had an opportunity to cross-examine the witness, does not apply to probation or community control revocation proceedings -- Revocation of probation or community control proceedings are not criminal prosecutions   Reported at 33 Fla. L. Weekly S273a
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