hearsay on the unavailability of the declarant and the defendant’s prior opportunity to cross-examine. Crawford, 541 U.S. at 68,124 S.Ct. 1354. Relying on Crawford, this court held in Johnson v. State, 929 So.2d 4 (Fla. 2d DCA 2005), review granted, 924 So.2d 810 (Fla.2006), that an FDLE lab report prepared pursuant to police investigation and offered to establish an element of a crime was testimonial hearsay and inadmissible in the absence of establishing the Crawford conditions. We rejected the State’s argument that the report should be admitted under the business record exception to the hearsay rule and certified the question to the Florida Supreme Court, Johnson, 929 So.2d at 8-9; see also Belvin v. State, 922 So.2d 1046 (Fla. 4th DCA), review granted, 928 So.2d 336 (Fla.2006) (<HOLDING>). In this case, we decline the State’s
holding en banc that the portions of the breath test affidavit pertaining to the technicians procedures and observations constitute testimonial evidence and were inadmissible under crawford holding affidavit insufficient to support probable cause when one cannot learn from the affidavit when the past activities occurred and when the observations were made holding that any error in admitting results of breath test through admission of breathalyzers certificate of inspection which defendant claimed constituted inadmissible testimonial hearsay was harmless when the jury acquitted defendant of driving under the influence with an unlawful bloodalcohol concentration holding that there was sufficient probable cause for the defendants dui arrest when the evidence showed that the officer smelled the odor of alcohol on the defendants breath the defendants eyes were bloodshot and watery and his breath test was positive for alcohol holding 1 that administering a breath test is not a critical stage of the proceedings to which a sixth amendment right to counsel attaches and 2 that the results of a breath test are physical evidence  not testimonial  and thus no fifth amendment right to counsel attaches