Petition — Washington v. Fitzsimmons

80-365

DOCKET NO.

IN THE SUPREME COURT OF THE UNITED

OCTOBER TERM, 1980

STATE OF WASHINGTON,

Petitioner.

Vv.

EDWIN FITZSIMMONS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE UNITED STATES

ON APPEAL FROM THE SUPREME COURT OF THE

STATE OF WASHINGTON

PETITION FOR WRIT OF CERTIORARI

Presented by:

PATRICK BROCK

Special Deputy Prosecuting Attorney

Counsel of Record

City Hall, Lottie Street

Bellingham, Washington 98225

(206) 676-6903

DAVID S. MCEACHRAN

Prosecuting Attorney

Whatcom County Courthouse

311 Grand Avenue

Bellingham, Washington 98225

(206) 676-6784

QUESTIONS PRESENTED

1. When an individual is charged

with the crime of Driving A _ Motor

Vehicle While Under the Influence of

Alcohol, does the critical stage requir-

ing the appointment of a court -

appointed attorney arise at the time of

his arrest and before the breathalyzer

is administered?

re Does the denial of such an

appointment require that the charges

against that defendant be dismissed?

TABLE OF CONTENTS

STATEMENT OF FACTS....ccccceoes

APPENDIX A.wccccccccccvevevvees

APPENDIX B...cisccccccccccccees

APPENDIX C..cccscccccccceccvces

TABLE OF AUTHORITIES

State v. Fitzsimmons,

ns BORE CEPIP) ccccccoss

State v. City of Tucson,

25 Ariz.App. 214, —

542 P.2d 407 (1979)... cecccecce

United States v. Wade,

18 L.Ed.2d 11495,

87 S.Ct. 1926 (1967)... eueee

CONSTITUTIONAL PROVISIONS

a ames ON. Yl cscoahess

COURT RULES

Mery

Supreme Court Rule 17..........

OPINION OF WASHINGTON STATE

SUPREME COURT

State v. Fitzsimmons, 93 Wn.2d 436,

P.2d (1980)

ii

STATEMENT OF FACTS

On May 1, 1980, the Washington

State Supreme Court entered judgment in

the above - entitled matter reversing

the Whatcom County Superior Court and

the Washington State Court of Appeals. A

Motion for Rehearing was timely filed,

and was denied by the Washington State

Supreme Court on June 23, 1980.

The case entailed the interpre-

tation of the Sixth Amendment to the

United States Constitution and its

applicability to the states through the

Fourteenth Amendment. The case dealt

with the right of an indigent defendant

charged with Driving While Under the

Influence of Alcohol to have a court -

appointed attorney. The Washington State

Supreme Court ruled that if the defend-

ant requested the presence of an attor-

ney and he could not afford to pay for

one, then he is entitled to have one

appointed at the time of his arrest

prior to the administration of the

breathalyzer. The Court further held

that if the State failed to comply, the

charges against the defendant should be

dismissed, ;

Supreme Court Rule 17 governing

the considerations for review by certio-

rari indicate that when a state Court

has decided a Federal question of sub-

stance not previously determined by this

Court, or has decided it in a way not in

accord with the applicable decisions of

this Court, or when a state court of

last resort has decided a Federal ques-

tion in conflict with the decision of

another state court of last resort, then

a Writ of Certiorari would be appro-

priate. The issues presented in this

case fall within the provisions of Rule

17, and review by this Court would be

proper.

The right to counsel is a sub-

stantial Federal right and the decision

by the Washington Supreme Court creates

a direct conflict with another juris-

diction, the State of Arizona. In addi-

tion, the decision is not consistent

with decisions rendered by this Court in

its interpretation of the Sixth Amend-

ment as applied to the states.

The Arizona Supreme Court has

ruled that a defendant does not have a

constitutional right to an attorney in

deciding whether or not to take the

breathalyzer test, and that the refusal

of the police officers to allow the

defendant to contact his attorney during

the booking process does not deprive the

defendant of his right to counsel. See

State v. City of Tucson, 25 Ariz.App.

214, 542 P.2d 407 (1979). Furthermore,

the United States Supreme Court in

United States v. Wade, 388 U.S. 218, 18

L.Ed.2d 1149, 87 §.Ct. 1926 (1967),

indicated that it would not extend the

Sixth Amendment right to counsel to

"preparatory steps in the gathering of

the prosecution evidence such as the

taking of fingerprints or blood

samples". The Court had stated that the

subsequent trial would cure the one

sidedness of the confrontation between

the prosecuting attorney and uncounseled

defendant. The Washington State Supreme

Court's decision works to extend when

the critical stage arises in relation to

the Wade decision, and is in direct

conflict with the decision rendered by

the Arizona Supreme Court on the same

issue. This conflict can be resolved

only by review by this Court.

Therefore, the Petitioner is

asking that this Court review the Sixth

Amendment right to counsel and when that

right accrues in a case in which a

person is charged with Driving While

Intoxicated. The Sixth Amendment to the

United States Constitution states the

following:

"In all criminal prosecutions,

the accused shall enjoy the

right to a speedy and public

trial, by an impartial jury of

the State and district wherein

the crime shall have been com-

mitted, which district shall

have been previously ascer-

tained by law, and to _ be

informed of the nature and

cause of the accusation; to be

confronted with the witnesses

against him; to have compul-

sory process’ for obtaining

witnesses in his favor, and to

have the assistance of counsel

for his defense."

The facts of this particular case are as

follows: at approximately 11:00 p.m. on

September 27, 1977, the defendant, Edwin

Fitzsimmons, was operating a motor

vehicle in Whatcom County, Washington.

As he was proceeding on a county highway

in a southerly direction, his vehicle

was observed by Trooper Ken Knies of the

Washington State Patrol. The trooper

observed the defendant's vehicle cross

the center line approximately one foot.

The Trooper then turned his’ vehic.e

around and followed the defendant arid

observed the defendant's vehicle cross

the center line again. (Stipulation of

Facts No. IV)

Officer Ken Knies then stopped

the defendant's vehicle and upon

approaching the vehicle, detected a mod-

erate to strong odor of intoxicants on

the defendant's person. The defendant

was asked to perform some physical tests

at the scene. After these tests were

performed, the defendant was arrested by

the trooper and shortly thereafter, a

mobile booking van arrived at the scene.

(Stipulation of Facts No. IV)

The defendant was taken into the

van and interviewed by Trooper’ Ken

Knies. In the course of the interview,

the defendant indicated that he had no

funds and could not afford an attorney,

but requested access to an attorney. The

defendant was informed that the Court

could appoint an attorney at the time of

his pre - trial or arraignment date. The

officer indicated that he could not give

the defendant legal advice. The defend-

ant felt that he should have the right

to advice immediately. The officer indi-

cated that he did have that right and

asked him who he wanted to call. The

defendant responded, "Whoever I can get

for free''. The trooper indicated that

"you're not going to get anything for

free tonight''. The defendant then said,

"Well, I can't afford nothing right

now''. The defendant was advised that the

Court could appoint the defendant an

attorney at the time of pre - trial or

arraignment date and the Trooper then

asked if the defendant wished to go to a

phone booth and call an attorney or did

the defendant wish to continue with the

questioning. (Stipulation of Facts No.

IV)

The defendant chose to invoke

his right to remain silent and did not

answer any further questions nor did he

take a breathalyzer test. The defendant

was then tried for Driving While Under

the Influence and was convicted of the

offense. This was done in the Whatcom

County District Court. This conviction

was appealed to the Superior Court for a

trial de novo. On December 9, 1977, the

defendant, through his attorney made a

motion to dismiss the charges against

him on the basis that the denial of

access to counsel required a dismissal.

This motion was denied although all the

evidence which was gathered after the

request for an attorney was suppressed.

The defendant was then convicted in the

Superior Court of Whatcom County and he

appealed this conviction to the Washing-

ton State Court of Appeals. Ia an unpub-

lished opinion, the Washington State

Court of Appeals upheld the defendant's

conviction. (State v. Fitzsimmons, 23

Wn.App. 1012 (1979)) The Court of

Appeals indicaced in its decision that

the trial Court properly denied the

defendant's motion to dismiss and any

possible prejudice was avoided by the

exclusion of all evidence obtained after

the defendant's request for counsel. The

Court ruled that neither police action

nor police policy had prevented the

defendant from cortacting an attorney of

his choice. By excluding all evidence

c’tained after the defendant requested

counsel, the Court averted the possi-

bility of any prejudice to the defendant

and affirmed the conviction. The defend-

ant then filed a motion for reconsidera-

tion which was denied on June 23, 1980.

The defendant then appealed to

the Washington State Supreme Court

alleging that the denial of counsel at

the time of arrest was in fact denial of

counsel at a critical stage and there-

fore, deprived him of his’ right to

counsel. The Supreme Court ruled in the

defendant's favor, and stated that the

time ot arrest for Driving While Under

the Influence of Alcohol was in fact a

critical stage and that counsel must be

provided if requested at that time if

the defendant cannot afford counsel. The

Supreme Court therefore reversed the

Superior Court and the Court of Appeals

and ordered that the charges against the

defendant be dismissed.

The Petitioner is alleging that

this ruling of the Washington Supreme

Court is in error, is in conflict with

United States v. Wade, supra, and State

10

v. City of Tucson, supra, and should be

reversed. The Washington State Supreme

Court has erroneously held that the time

of arrest in a Driving While Under the

Influence of Alcohol charge is a criti-

cal stage in the proceedings, and has

misconstrued this Court's ruling in

United States v. Wade, supra.

Therefore, this matter should be

reviewed by this Court.

Respectfully submitted,

WEL (QL

PATRICK BROCK

Special Deputy

Prosecuting Attorney

Counsel of Record

DAVID S. McEACHRAN

Prosecuting Attorney

11

APPENDIX A

IN THE COURT OF APPEALS OF THE

STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent, No. 6617-I

V. Division One

EDWIN FITZSIMMONS,

Appellant. Filed APR 16 1979

ANDERSON, J.

FACTS OF CASE

Following a trial on stipulated

facts, the trial court entered a

judgment finding Edwin Fitzsimmons

guilty of operating a motor vehicle

while under the influence of intoxicat-

ing liquor. The defendant appeals from

this judgment challenging the _ trial

court's denial of his pretrial motion to

dismiss.

The defendant was apprehended at

about 11:00 p.m. after his vehicle was

observed crossing the center line of the

highway. He was given a number of

physical sobriety tests, arrested and

12

read his Miranda! warnings. The

defendant requested immediate legal

advice and, after the arresting officer

asked the defendant which attorney he

wished to call, the defendant indicated

that he wanted "free" legal advice. He

was informed by the officer that he

could not "get anything for’ free

tonight,'' but that the court’ would

appoint counsel "at the time of pretrial

or at arraignment date."' The officer

then asked the defendant whether he

wanted to continue with tests or call an

attorney. The defendant refused to

continue and subsequently refused to

take a Breathalyzer test.

The defendant's theory in

bringing his pretrial motion was that,

because of the nature of the charge

against him, denial of immediate access

to appointed counsel irreparably damaged

the preparation of his defense and

required dismissal. The trial court

ruled that dismissal was not warranted

and excluded all evidence obtained after

IMiranda v. Arizona, 384 U.S.

436, 16 L.Ed.2d 694, 86 S.Ct. 1602, 10

A.L.R.3d 974 (1966).

13

the defendant's request for counsel.

One issue is presented.

ISSUE

Was the defendant entitled to a

dismissal of the charge against him

because he was not provided with court -

appointed counsel immediately after his

arrest?

DECISION

CONCLUSION. The trial court

properly denied the defendant's motion

to dismiss and any possible prejudice

was avoided by the exclusion of all

evidence obtained after the defendant's

request for counsel.

The defendant relies on the case

of Tacoma v. Heater, 67 Wn.2d 733, 409

P.2d 867 (1966). In Heater, denial of

permission to call an attorney for a 4 -

hour period, pursuant to a= police

department rule, was clearly

prejudicial. State v. Ivey, 73 Wn.2d

589, 590, 439 P.2d 974 (1968). In this

case, however, neither police action nor

police policy prevented the defendant

from contacting an attorney of his

14

choice. Moreover, by excluding all

evidence obtained after the defendant

requested counsel, the court averted the

possibility of any prejudice to _ the

defendant. Tacoma v. Heater, supra, has

no application to this case. State v.

Ivey, supra, at 590. See also State v.

Green, 70 Wn.2d 955, 960 - 61, 425 P.2d

913 (1967). Cf. Tacoma v. Heater, supra,

at 741.

Affirmed.

/s/ Andersen, J.

WE CONCUR:

fad Partita. J. /s/ Swanson, J.

A majority of the

panel having determined

that this opinion will be

filed for public’ record

pursuant to RCW 2.06.040,

as amended by the Laws of

i971, ch. 461, ss 1, p- 63,

IT IS SO ORDERED.

/s/Keith M. Callow

Chief Judge

15

APPENDIX

B

[No. 46366. En Banc. May 1, 1980.]

THE STATE OF WASHINGTON, Respondent, v. Epwin

FiTzsimMons, Petitioner.

{1] Intoxicating Liquors — Automobiles — Driving While

Intoxicated — Right to Counsel — In General. Under JCrR

2.11 and the Sixth Amendment, a police officer must allow a

defendant to have access to counsel immediately after arresting and

16

May 1980 STATE v. FITZSIMMONS 437

(2)

[3]

[4]

[5]

[6]

(7)

93 Wn.2d 436

charging him for driving while under the influence of intoxicating

liquor.

Intoxicating Liquors — Automobiles — Driving While

Intoxicated — Right to Counsel — Critical Stage. The

period immediately following the arrest and charging of a defendant

for driving while under the influence of intoxicating liquor consti-

tutes a “critical stage” in the criminal prosecution necessitating that

the defendant be given access tu counsel.

Criminal Law — Right to Counsel — Indigent Defendant —

Availability of Appointed Counsel. The right to counsel guar-

anteed by the Sixth Amendment is the same for indigent and finan-

cially able criminal defendants. An indigent defendant's right to

counsel may not be limited by the normal working hours of court

appointed attorneys.

Intoxicating Liquors — Automobiles — Driving While

Intoxicated — Right to Counsel — Indigent Defendant —

Nature of Access. The access to court appointed counsel which

must be provided to an indigent defendant arrested and charged

with driving while under the intluence of intoxicating liquor may be

limited to allowing him to use a telephone and giving him the tele-

phone number of a public defender organization or the telephone

numbers of individuals willing to serve as counsel for indigents.

Intoxicating Liquors — Automobiles — Driving While

Intoxicated — Right to Counsel — Implied Consent —

Effect. The implied consent statute, RCW 46.20.308, does not affect

a criminal defendant's right under JCrR 2.11 to have access to

counsel upon being arrested and charged with driving while under

the influence of intoxicating liquor. A decision to operate an auto-

mobile does not impliedly waive the operator's constitutional right

to counsel.

Intoxicating Liquors — Automobiles — Driving While

Intoxicated — Right to Counsel — Denial — Effect. A prose-

cution for driving while under the influence of intoxicating liquor

must be dismissed if the defendant is shown to have been denied

access to counsel immediately after being arrested and charged.

Criminal Law — Review — Harmless Error — Test. A con-

viction following a denial of a defendant's constitutional rights will

be upheld under the harmless error doctrine only if the State can

prove beyond a reasonable doubt that the unconstitutional act did

not prejudice the defendant and that he would have been convicted

even if the error had not taken place.

17

438 STATE v. FITZSIMMONS May 1980

93 Wn.2d 436

Nature of Action: A defendant sought review of his

conviction in district court for driving while under the

influence of intoxicating liquor. After being arrested and

charged but before deciding whether to take a Breathalyzer

test, the defendant had requested to be represented by a

court appointed attorney, but his request was denied.

Superior Court: The Superior Court for Whatcom

County, No. 9698, Marshall Forrest, J., entered a judgment

of guilty on May 3, 1978. The court ruled that the detend-

ant had illegally been denied access to counsel but sup-

pressed no actual evidence since no evidence had been

obtained after the denial of the defendant's request for

counsel.

Court of Appeals: The court affirmed the judgment by

unpubiished opinion noted at 23 Wn. App. 1012.

Supreme Court: Holding that the defendant was ille-

gally denied access to appointed counsel immediately after

he was arrested and charged and that such a violation of his

constitutional rights required dismissal of the charge, the

court reverses the judgment and orders that the charge be

dismissed.

William Johnston and Sisson, Erickson, Balas & John-

ston, for petitioner.

David S. McEachran, Prosecuting Attorney, and Philip

A. Serka and Mark D. Bantz, Deputies, for respondent.

Horowitz, J.—Defendant Edwin Fitzsimmons appeals

his conviction for driving while under the influence of

intoxicating liquor. RCW 46.61.502, .504, .515. The Court of

Appeals, Division One, attirmed the judgment entered in

the Superior Court for Whatcom County following trial de

novo on appeal from a conviction in district court. State v.

Fitzsimmons, 23 Wn. App. 1012 (1979).

This court granted defendant's petition for review to

consider two questions:

18

May 1980 STATE v. FITZSIMMONS 439

93 Wn.2d 436

(1)Was the defendant illegally denied access to

appointed counsel while in custody immediately after he

was arrested and charged for the offense of driving while

under the influence of intoxicating liquor? (2) If the

defendant was illegally denied access to appointed counsel,

what is the appropriate remedy for this violation of his

rights?

We reverse Mr. Fitzsimmons’ conviction for driving while

under the influence of intoxicating liquor and remand the

case to the trial court for dismissal of the charge against

him for the reasons set forth below.

I

Mr. Fitzsimmens was stopped at 11 p.m. on September

27, 1977, a Saturday, by Officer Ken Knies of the Washing-

ton State Patrol. Mr. Fitzsimmons was driving his automo-

bile south on a road south of Blaine, Washington. Officer

Knies had observed the defendant's vehicle swerve across

the center line approximately 1 foot twice, once in the face

of three northbound cars, before he stopped Mr. Fitzsim-

mons.

After stopping the defendant, Officer Knies detected a

moderate to strong odor of intoxicants on Mr. Fitzsimmons’

breath and observed that his eyes were watery and blood-

shot. There was no evidence of the quantity of liquor Mr.

Fitzsimmons had consumed or how long before his arrest he

had drunk liquor. After having the defendant perform sev-

eral physical tests of sobriety at the scene, Officer Knies

arrested Mr. Fitzsimmons, placed him in custody, and by

citation charged him with driving while under the influence

of intoxicating liquor. He then called a mobile DWI van,

which arrived at approximately 11:30 p.m.

The defendant was taken into the van and read his

Miranda rights, including his right to appointed counsel if

he could not afford legal assistance. Mr. Fitzsimmons then

requested an appointed attorney, stating that he felt that

he “should have the right to legal advice right now." The

defendant told the officer that he had no money. Officer

19

—_

440 ~ STATE v. FITZSIMMONS May 1980

93 Wn.2d 436

Knies informed the defendant that an appointed attorney

could not be provided for him at that time, telling Mr.

Fitzsimmons “You're not going to get anything for free

tonight.” Othicer Knies said that, instead, "The Court can

appoint [a lawyer] at the time of pre-trial or at arraign-

ment date." He also told the defendant that because he was

a Whatcom County resident, it was likely that he would be

released on personal recognizance rather than taken to jail.

The stipulated facts do not reveal when Mr. Fitzsimmons

was released or whether and for how long he was jailed

after his arrest and citation.

The defendant refused to take a Breathalyzer test after

being told he could not have a court appointed attorney's

advice at that time. He was convicted in district court of

driving while under the influence of intoxicating liquor. The

record does not reveal when he actually first appeared

before a magistrate. The findings of fact prepared when Mr.

Fitzsimmons was convicted reveal that the defendant was

an indigent and eligible for appointed counsel at the time

of his arrest. It does not appear when he was first

appointed counsel, but Mr. Fitzsimmons was represented

by an appointed attorney in Superior Court. On appeal to

the Superior Court, Mr. Fitzsimmons, acting through his

appointed attorney, moved to have the charges against him

dismissed on the basis of Tacoma v. Heater, 67 Wn.2d 733,

409 P.2d 867 (1966). The court denied the motion for dis-

missal but concluded that Mr. Fitzsimmons had illegally

been denied access to counsel and therefore ruled that all

evidence obtained after that violation of the defendant's

rights would be suppressed. Because all of the State's evi-

dence had been gathered before Mr. Fitzsimmons’ request

for counsel, no evidence was actually suppressed.

Mr. Fitzsimmons was subsequently convicted in Superior

Court on the basis of stipulated facts. He was sentenced to

180 days in the Whatcom County jail, fined $312.50, and

placed on probation for 1 year. The Court of Appeals

affirmed the suppression order and the conviction. This

20

May 1980 STATE v. FITZSIMMONS 441

93 Wn.2d 436

court granted defendant's petition for review of the convic-

tion.

I]

DEFENDANT'S RIGHT TO ACCESS TO APPOINTED COUNSEL

The defendant contends that he was illegally denied

access to appointed counsel when, upon informing the

charging officer that he had no money but that he desired

legal advice, he was told in substance there was no provi-

sion for access to appointed counsel who could advise him

at that time, but that he would have to wait for assistance

until he had appeared before a magistrate some time later.

Both justice court rules and constitutional case law show

that Mr. Fitzsimmons’ contention that he was illegally

denied access to appointed counsel is correct.

[1] JCrR 2.11(c), which states that an individual must

be immediately advised of his right to appointed counsel

when taken into custody, requires that "[a]t the earliest

opportunity a person in custody who desires counsel shall

be provided access to a telephone, the telephone number of

the public defender or official responsible for assigning

counsel, and any other means necessary to place him in

communication with a lawyer." Although Mr. Fitzsimmons

requested legal advice, the provisions of JCrR 2.11(c) were

not complied with. He was not provided access to a phone

or with the telephone numbers of attorneys who serve as

appointed counsel to indigents. See also JCrR 2.11(b)(1),

which states that "(t]he right to counsel shall accrue as

soon as feasible after the defendant is taken into custody,

when he appears before a committing magistrate, or when

he is formally charged, whichever occurs earliest." Here,

Mr. Fitzsimmons’ right to counsel attached both because he

was arrested and placed in custody and because he was

charged. His rights under these rules were violated when he

was denied the information and means necessary to allow

him to contact appointed counsel.

Under the unique circumstances of this case, compliance

with the provisions of JCrR 2.11 was also constitutionally

21

442 STATE v. FITZSIMMONS May 1980

93 Wn.2d 436

compelled. Mr. Fitzsimmons justifiably relies on Tacoma v.

Heater, supra, in which this court ruled that it is constitu-

tional error to prevent a defendant charged with driving

while under the influence of intoxicating liquor from having

access to the means of obtaining legal advice.

{2} A criminal defendant's Sixth Amendment right to

counsel attaches when a critical stage in a criminal prose-

cution resulting in loss of liberty is reached. Kirby v. Jili-

nois, 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877 (1972);

Argersinger v. Hamlin, 407 U.S. 25, 32 L. Ed. 2d 530, 92 S.

Ct. 2006 (1972); Tacoma v. Heater, supra, State v. Jack-

son, 66 Wn.2d 24, 400 P.2d 774 (1965).

In Heater, the defendant was prevented from calling his

privately retained attorney by a Tacoma Police Department

regulation that denied individuals charged with an offense

involving intoxication the right to make a telephone call

until 4 hours had passed since arrest. The court emphasized

the unique nature of the charge of driving while under the

influence in ruling that the police regulation interfered with

the defendant's Sixth Amendment right to counsel at a

“critical stage” in his case:

At what time was a “critical stage" reached in the

defendant's case? It was no later than the moment when,

immediately after the police officers had conducted their

tests for sobriety and had interrogated the defendant,

they charged him with the offense.

The denial of counsel at this point prevented the

defendant's effective preparation for his defense to the

charge against him. It was necessary for him to present

evidence showing that he was not under the influence of

intoxicating liquor at the time of his arrest. A most

effective way to present such evidence would be through

disinterested witnesses who could observe his condition

soon after his arrest or after he had been booked for the

crime, and by a blood test administered by a doctor. The

evidence of intoxication dissipates with the passage of

time. The 4—hour rule. . . recognizes that after 4 hours a

rson under the influence of intoxicating liquor will

ave reached a state of sobriety so that he is safe to be

released. . .

22

May 1980 STATE v. FITZSIMMONS 443

93 Wn.2d 436

The defendant had virtually no other way to obtain

the necessary proof of his innocence.

It was essential to the effective preparation of his

defense that the defendant be permitted to communicate

with his attorney immediately after he was charged, in

order to secure assistance of counsel in the pre-trial

period as required by the constitutional standards.

Tacoma v. Heater, supra at 739-40.

Heater thus established the rule in this case that when

the defendant is charged with driving while under the

influence of intoxicating liquor, he must be allowed access

to legal counsel immediately after arrest and charging.

As in Heater, the defendant here was charged with driv-

ing while under the influence of intoxicating liquor by the

officer who issued a citation and was dewied immediate

access to legal counsel. The only potentially distinguishing

characteristic is the fact that in this case Mr. Fitzsimmons

asserted that he was indigent and requested access not to a

retained attorney but to appointed counsel. There is no

claim that defendant was not eligible as an indigent for

appointed counsel. Indeed, he was later found to be indi-

gent by the court in an unchallenged finding and thus eli-

gible for appointed counsel. JCrR 2.1i(c)(1), (d)(1).

The State argues that because the defendant is indigent,

his right to counsel is limited by the availability of indigent

attorney services. It notes that "Whatcom County provides

indigent defendant attorney services [only] during working

hours on weekdays for those persons referred by the

Court.”

[3] However, the right to access to counsel established

in Heater is of a constitutional proportion and cannot be

affected by the exigencies of such law office hours. Principal

authority for the decision in Heater was the United States

Supreme Court's opinion in Gideon v. Wainwright, 372

U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, 93 A.L.R.2d 733

(1963), which established the indigent's Sixth Amendment

right to counsel at the expense of the state. That right was

expressly extended to misdemeanor crimes resulting in

23

444 STATE v. FITZSIMMONS May 1980

93 Wn.2d 436

imprisonment, such as the instant case, in Argersinger v.

Hamlin, 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006

(1972).

The defendant's constitutional rights cannot and do not

depend on the status of his bank account. Thus, Heater

requires the State to provide the indigent charged with

driving while under the influence of intoxicating liquor with

access lo appointed counsel in the same instances in which

the solvent accused must be allowed to contact his privately

retained attorney. The constitutional right to counsel in

this case does not depend on whether the attorney is

appointed or retained,

The Sixth Amendment right to counsel has been further

detined by the United States Supreme Court since this

court's decision in Heater. A brief analysis of the facts in

this case in light of the three criteria which are generally

thought to require access to counsel will contirm the viola-

tion of Mr. Fitzsimmons’ constitutional rights.

First, in Kirby v. Illinois, 406 U.S. 682, 32 L. Ed. 2d 411,

92 S. Ct. 1877 (1972), the United States Supreme Court

stated that the Sixth Amendment right to counsel arises at

the “initiation of judicial criminal proceedings":

It is then that a defer ant finds himself faced with the

rosecutorial forces oi organized society, and immersed

in the intricacies of substantive and procedural law.

Kirby v. Illinois, supra at 689. When Officer Knies cited

the defendant for driving while under the influence of

intoxicating liquor, criminal proceedings were "initiated."

RCW 46.64.0100, .015; Mercer Island v. Crouch, 12 Wn.

App. 472, 475, 530 P.2d 344 (1975). Issuance of a citation

charging Mr. Fitzsimmons with the crime of driving while

under the influence of intoxicating liquor required him to

answer that charge in a judicial court and confronted him

with the "prosecutorial forces of organized society." The

criteria of Kirby had thus been met.

Second, as discussed in Heater, the right to counsel atta-

ches only to a “critical stage” in the criminal prosecution.

Such a situation arises when the defendant's right to a fair

24

May 1980 STATE v. FITZSIMMONS 445

93 Wn.2d 436

trial or other substantial rights may be affected. Coleman v.

Alabama, 399 U.S. 1, 26 L. Ed. 2d 387, 90 S. Ct. 1999

(1970). Mempa v. Rhay, 389 U.S. 128, 19 L. Ed. 2d 336, 88

S. Ct. 254 (1967); Pettit v. Rhay, 62 Wn.2d 515, 383 P.2d

889 (1963). As set out in the excerpt from Heater above,

the period immediately after arrest and charging in a driv-

ing while under the influence of intoxicating liquor case is a

"critical stage" because of the unique character of the evi-

dence to be obtained and the trial strategy decisions which

must be made then, if at all. The analysis of Heater still

persuades us that in the prosecution of this particular type

of charge, the period immediately following charging is a

critical stage.

Third, in United States v. Ash, 413 U.S. 3800, 387 L. kd.

2d 619, 93 S. Ct. 2568 (1973), the Supreme Court stated

that the Sixth Amendment right to counsel extended only

to events during which “the accused required aid in coping

with legal problems or assistance in meeting his adversary”,

United States v. Ash, supra at 313, where "the accused was

confronted, just as at trial, by the procedural system, or by

his expert adversary, or by both." United States v. Ash,

supra at 310. The time immediately after arrest and charg-

ing for driving while under the influence, when the defend-

ant is still in custody and must immediately make the

decision whether to submit to the Breathalyzer, arrange for

further testing and observation of his mental state or for-

ever lose any defense, is certainly such an event. Only by

acknowledging the defendant's right to access to counsel

can we insure he is meaningfully assisted in his defense.

In reattirming the rule of 7acoma v. Heater we clearly

note the necessary limits to our holding imposed by the

factual situations in that case and in the instant case. We

reiterate the importance of intoxication as an element of

the offense in requiring a rule that allows the defendant

immediate access to an attorney. Without this factor, the

period immediately following arrest and charging for a

traftic offense would not be a "critical stage” of the criminal

25

446 STATE v. FITZSIMMONS May 1980

93 Wn.2d 436

prosecution in which the defendant's Sixth Amendment

right attaches.

Although stringent enforcement of the criminal laws can-

not override the defendant's constitutional rights, we also

wish to voice our confidence that reaffirmation of the

defendant's rights to assistance of counsel will not handicap

enforcement of the drunk driving statutes. For example,

the State is already required to inform the defendant that

he need not take the Breathalyzer test and of the conse-

quences of refusal. RCW 46.20.308. Access to counsel will

merely allow the defendant to receive legal advice if he

chooses before responding to the warning.

[4] In addition, we note that Heater's application to a

defendant who asserts that he is indigent will place no

additional burden on the arresting and charging other,

who must simply provide any defendant with access to a

telephone and the number of a public defender organiza-

tion or numbers of individuals willing to act as counsel in

this type of case.’ Mr. Fitzsimmons’ attorney expressed his

willingness to act as counsel and indicated to this court in

oral argument that he would have traveled to the scene of

Mr. Fitzsimmons arrest and charging had he been con-

tacted. We are confident many other attorneys in this state

will also bear their ethical duty to provide legal assistance

under these circumstances. See especiaily (CPR) EC 1-1

("A basic tenet of the professional responsibility of lawyers

is that every person in our society should have ready access

to the independent professional services of a lawyer of

integrity and competence."); (CPR) EC 2-25 ("The basic

responsibility for providing legal services for those unable

‘As noted by the defense attorney's atlidavit, as a practical matter the

requirements of Heater appear to be already met in some counties in the state. In

at least three counties—King, Snohomish, and Clark—24-hour access to

appointed counsel by telephone is provided. Attidavits of Williams Johnson

(December 8, 1977). In the state's less populated counties a list of attorneys who

have expressed a willingness to serve as appointed counsel for indigents could

easily be supplied to the defendant by the arresting and charging officer if the

defendant requests legal assistance.

26

May 1980 STATE v. FITZSIMMONS 447

93 Wn.2d 436

to pay ultimately rests upon the individual lawyer . . .);

(CPR) EC 2-26 ("[I]n furtherance of the objective of the

bar to make legal services fully available, a lawyer should

not lightly decline protfered employment. The fulfillment

of this objective requires acceptance by a lawyer ot his

share of tendered employment which may be unattractive

both to him and the bar generally." ).

Nothing prevents the officer from carrying and providing

the defendant with a list of organizations or attorneys wdl-

ing to be called after regular hours to assist individuals

arrested and charged with driving while under the influ-

ence, and the analysis undertaken above demonstrates that

such a step is consistent with the constitution and court

rules. The police oftticer need not, and of course cannot,

appoint counsel for the defendant. That is the judge's obli-

gation. JCrR 2.11(c)(2) does not require or permit the offi-

cer to ascertain if the defendant is indeed indigent before

providing him with the means and information necessary to

contact assigned counsel. The defendant's actual indigent

status can be briefly ascertained during his initial contact

with an attorney and can be verified, as it was in this case,

at his initial appearance before a magistrate. See JCrR

2.03.

The nature of the defendant's right to access to counsel

does not unduly burden the State. The circumstances

under which arrest and charging for the instant offense

often occurs—at late hours on remote highways—make it

likely that in some cases attorneys may choose to advise

charged defendants over the telephone. ‘The State is not

required to insure under the preliminary circumstances of

this and similar cases that the defendant is placed in face-

to-face contact with counsel. Although a criminal defend-

ant's Sixth Amendment right to counsel in most other cir-

cumstances will require the State to insure that the

defendant is advised by an attorney in person, that is not

the case here. The unique nature of the offense of driving

while under the intluence and the circumstances under

which the defendant is likely to be arrested and charged.

27

448 STATE v. FITZSIMMONS May 1980

93 Wn 2d 436

both create the constitutional right and limit the type of

effort the State must make to avoid violating that right. Cf.

Wolff v. McDonnell, 418 U.S. 539, 560 -63, 41 L. Ed. 2d 935,

94S. Ct. 2963 (1974) (extent of procedural protection con-

stitutionally required varies with the nature of the individ-

ual's interest and the factual context in which the interest

is asserted). Often telephone consultation alone at the stage

in the proceedings considered here will provide the defend-

ant with adequate legal assistance to assure his basic rights

to a fair trial. The State must merely insure that the

defendant can immediately contact counsel who can help

him make the decision as to how his defense will be struc-

tured, and whether that defense requires the attorney's

physical presence at the scene of the charging. ‘This was the

right denied Mr. Fitzsimmons in this case under the con-

stitutional rule of Tacoma v. /leater, 67 Wn.2d 733, 409

P.2d 867 (1966).

Although the State does not argue that the implied con-

sent law can have any adverse effect on a defendant's

established right of access to counsel, it has been suggested

that this statute, implying a driver's “consent” to tests

designed to determine the alcoholic content of his blood,

somehow alters the character of the confrontation between

the State and the accused and thus abrogates the defend-

ant's right of access to counsel at what would otherwise be

a critical stage in the proceeding against him. However, as

next appears, the implied consent statute does nut affect

the defendant's rights but instead forcefully demonstrates

the need to allow the defendant access to counsel, if

desired, to assist in making the decision whether to submit

to chemical sobriety tests.

RCW 46.20.308, although called an “implied consent"

statute, clearly gives the driver arrested for driving while

under the influence the right to submit to or refuse chemi-

cal sobriety tests requested by the arresting ofticer.

Although the first sentence states that a driver "shall be

deemed to have given consent . . . to a chemical test or

tests of his breath or blood for the purpose of determining

28

May 1980 STATE v. FITZSIMMUNS 449

93 Wn.2d 436

the alcoholic content of his blood," the statute goes on to

state that the arresting otficer "shall inform the person of

his right to refuse the test. . . ." RCW 46.20.308 goes on to

state that "no test shall be given" if “the person arrested

refuses . . . to submit to a chemical test of his breath. . ."

The penalty for exercising the right to refuse is 6 months’

revocation of the defendant's driver's license, but it is clear

that the defendant has an option and that it is not illegal or

statutorily unjustifiable to refuse to consent to proposed

Stute—administered testing. See Gooch v. Spradling, 523

S.W.2d 861 (Mo. Ct. App. 1975); Brady v. Tofany, 386 App.

Div. 2d 987, 320 N.Y.S.2d 880 (1971); Blow v. Comm'r of

Motor Vehicles, 83 8.D. 628, 164 N.W.2d 351 (1969).

Although the State may be able to force the defendant to

undergo chemical sobriety tests, see Schmerber v. Califor-

nia, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966),

that is a question we need not decide here because the

State clearly has not provided for mandatory testing in

RCW 46.20.308. Instead, the State has acknowledged the

critical nature of the requested chemical sobriety testing

and has required the defendant to make a decision regard-

ing testing that could often be better made with the advice

of an attorney.

[5] Nothing in RCW 46.20.308 precludes the application

of general court rules such as JCrR 2.11, which insures the

defendant the right to contact counsel “at the earliest

opportunity,” to defendants charged with driving while

under the influence. Uniformly, other states which have

considered the applicability of rules and statutes alfor(ing

a general right to counsel to DWI defendants have con-

cluded that implied consent laws have no effect on the

rights established in those provisions. See Gooch v. Sprad-

ling, supra (Missouri); McNulty v. Curry, 42 Ohio St. 2d

341, 328 N.E.2d 798 (1975); Prideaux v. Department of

Public Safety, 310 Minn. 405, 247 N.W.2d 385 (1976). The

provisions of JCrR 2.11 are not affected by the implied

consent aspects of RCW 46.20.308.

29

450 STATE v. FITZSIMMONS May 1980

93 Wn.2d 436

It is also clear RCW 46.20.308 cannot act to "waive" the

defendant's constitutional right of access to counsel in a

criminal proceeding such as that appealed from here. The

waiver of constitutional rights necessary to a fair trial, such

as the Sixth Amendment right to counsel, must be "know-

ing and intelligent” and cannot be implied merely because

the defendant chooses to drive on the roads of this state.

Johnson v. Zerbst, 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct.

i019 (1938); see Schneckloth v. Bustamonte, 412 U.S. 218,

36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973).

It is true that in some other states that have considered

the question, the decision to undergo chemical sobriety

tests requested by the arresting otticer has not been consid-

ered a critical stage at which the defendant must be

attorded access to counsel. However, these cases have

examined the detendant’s rights in the context of a subse-

quent administrative proceeding, similar to that provided

in this state, reviewing revocation of the defendant's license

for refusing to submit to testing.” In many cases the hold-

ings have been explicitly and carefully limited to a decision

that the Sixth Amendment right to counsel does not apply

in administrative proceedings such as these revocation

hearings. See Blow v. Comm'r of Motor Vehicles, supra;

Gottschalk v. Sueppel, 258 lowa 1173, 140 N.W.2d 866

(1966); Mills v. Bridges, 93 Idaho 679, 471 P.2d 66 (1970);

State v. Severino, 56 Haw. 378, 537 P.2d 1187 (1975). In a

criminal case such as that considered here, the constitu-

tional analysis undertaken above of the circumstances in

which the Sixth Amendment right attaches convinces us

that a critical stage in the criminal proceeding against Mr.

Fitzsimmons was indeed reached and that his rights were

violated by the arresting otticer's refusal to allow him access

to appointed counsel after his arrest for driving while under

“This case considers the right to counsel in a criminal prosecution. We need

not, and do not, reach the question whether the right to counsel would apply in an

administrative proceeding under RCW 46.20.329 to determine whether revocation

of the defendant's driver's license for refusal to take a chemical sobriety test is

justified.

30

May 1980 STATE v. FITZSIMMONS 451

93 Wn.2d 436

the influence. See Prideaux v. Department of Public

Safety, supra; Hall v. Secretary of State, 60 Mich. App.

431, 231 N.W.2d 396 (1975); People v. Gursey, 22 N.Y.2d

224, 239 N.E.2d 351, 292 N.Y.S.2d 416 (1968). We therefore

hold that Mr. Fitzsimmons was illegally denied access to

counsel.

ll!

REMEDY FOR DENIAL OF DEFENDANT'S RIGHT OF ACCESS

TO APPOINTED COUNSEL

[6] Having determined that Mr. Fitzsimmons was ille-

gally denied access to counsel under the rule of Tacoma v.

Heater, supra, we must consider the appropriate response

to this denial of his rights. We again adhere to the rule in

Heater requiring dismissal of the driving while under the

influence charge against Mr. Fitzsimmons.

In Heater this court stated that "the denial to the

defendant of the assistance of his attorney after the ofticers

had conducted their tests and questioning, violated his

constitutional right to have counsel and due process, and

any conviction obtained thereafter was void.” Tacoma v.

Heater, supra at 741 (footnote omitted). Mr. Heater's con-

viction was therefore reversed and the action dismissed.

The dissent in Heater correctly characterized the majori-

ty’s approach as one “which conclusively attributes or pre-

sumes prejudice to the defendant . . ." Tacoma v. Heater,

supra at 751 (Finley, J., dissenting). We continue to believe

that "it must inevitably follow that Mr. [Fitzsimmons] suf-

fered irreparable prejudice", Tacoma v. Heater, supra at

745, because of the unique circumstances of a driving while

under the influence case in which denial of access to coun-

sel may prevent development of a defense because the evi-

dence of intoxication disappears within a relatively short

time.

The Court of Appeals affirmed the trial court's disposi-

tion of the denial of counsel on the grounds that evidence

obtained after the denial could be suppressed. Since all the

evidence supporting guilt was developed before denial of

31

452 STATE v. FITZSIMMONS May 1980

93 Wn.2d 436

counsel, the Court of Appeals said the conviction could

stana. This fact alone reveals that the “remedy” has no real

ameliorative effect on the violation of the defendant's right.

The action taken is also not supported by precedent.

Cited in support of the suppression remedy by the Court of

Appeals was this. court's decision in State v. lvey, 73 Wn.2d

589, 439 P.2d 974 (1968). In Jvev, the defendant was con-

victed for possession of two marijuana cigarettes after being

arrested for being drunk in a public place. The search in

which the cigarettes were found was pursuant to a lawful

arrest and was constitutional. As this court correctly noted

in Jvev, Heater was distinguishable and had no application.

Ivey was not convicted of an offense involving intoxication

and the presence of an attorney immediately after being

taken into custody could have had no effect on her defense

for possession of marijuana found during a lawful search.

In this case, however, the denial of access to counsel had

the same effect it did in Heater—it prevented assistance of

counsel at trial in development of a defense because evi-

dence of intoxication is quickly dissipated. This court rec-

ognized that in State v. Ivey, supra at 590, in which

Heater's denial of counsel was called "clearly prejudicial.”

The Court of Appeals reliance on State v. Ivey, supra, and

on State v. Green, 70 Wn.2d 955, 425 P.2d 913 (1967),

which also did not involve an intoxication offense, was

unjustified.

The State also argues that Mr. Fitzsimmons’ conviction

should be upheld because the unconstitutional denial of his

right to counsel was "harmless error" and did not prejudice

his defense.

{7] The harmless error doctrine allows a conviction to

stand, even if it follows a denial of the defendant's consti-

tutional rights, if the State can prove beyond a reasonable

doubt that the unconstitutional act did not prejudice the

defendant, and that he would have been convicted even if

the error had not taken place. Coleman v. Alabama, 399

U.S. 1, 11, 26 L. Ed. 2d 387, 90 S. Ct. 1999 (1970); Chap-

man v. California, 386 U.S. 18, 23, 17 L. Ed. 2d 705, 87 S.

32

May 1980 STATE v. FITZSIMMONS 453

93 Wn.2d 436

Ct. 824, 24 A.L.R.3d 1065 (1967). That burden was not met

by the State in this case.

The only evidence available against Mr. Fitzsimmons in

this case was the testimony of the single officer who

observed his behavior while driving and while performing

sobriety tests. An attorney could have -rranged for retrieval

of additional evidence in those few hours during which any

proof of the defendant's mental state could still be estab-

lished. This prevents the State from showing beyond a rea-

sonable doubt that the error was harmless.

The State suggested in oral argument that the defendant

was not harmed because he had not taken the Breathalyzer

test and, indeed, no evidence harmful to his case had been

gathered after denial of this right to access to counsel. But

in Heater the defendant had not undergone chemical

sobriety tests proposed by the State either. Tacoma uv.

Heater, 67 Wn.2d 733, 734, 409 P.2d 867 (1966). Mr. Fitz-

simmons’ attorney, had he been allowed to contact one,

could have advised him to take the State's proposed

Breathalyzer test or arranged for an independent Breathal-

yzer test. RCW 46.61.506(5). Unbiased observations, blood

tests, and supervised Breathalyzer readings could have

proved that the defendant was not intoxicated at the time

of his arrest and charging. See Tacoma v. Heater, supra at

739. Thus, even were we to adopt the harmless error test in

this type of case the State could not have met its burden.

The conviction should be reversed and the case

remanded to the trial court with directions to dismiss the

charge under the rule in Tacoma v. Heater, supra.

It is so ordered.

Urter, C.J., and RoseLuini, STAFFORD, WRIGHT, BRACH-

TENBACH, DOLLIVER, Hicks, and WILLIAMS, JJ., concur.

33

APPENDIX C

IN THE SUPREME COURT OF THE

STATE OF WASHINGTON

STATE OF WASHINGTON, )

)

Respondent. )

) MANDATE

Vv. )

EDWIN FITZSIMMONS, ) No: 46366

) WHATCOM COUNTY

Petitioner.) No. 9698

) COURT OF APPEALS

) NO. 6617-I

The State of Washington to: The Superior

Court of the State of Washington

in and for WHATCOM County

This is to certify that’ the

opinion of the Supreme Court of the

State of Washington filed on May 1,

1980, became the decision terminating

review of this court in the _ above

entitled case on June 23, 1980. This

cause is mandated to the Superior Court

from which the appeal was taken for

further proceedings in accordance with

the attached true copy of the opinion.

Pursuant to Rule of Appellate

Procedure 14.3, costs are taxed as

follows:

No cost bill having been filed, costs

34

are deemed waived.

An Order

Denying Motion for

Reconsideration was entered in this

case on June 23, 1980. Copy attached.

cc:

William Johnston

Hon. David S. McEachran

Whatcom County Pros. Atty.

Philip Serka, Deputy

Reporter of Decisions

Court of Appeals,

Division I

e

attach.

IN TESTIMONY

WHEREOF, I have

hereunto set my hand

and affixed the seal

of said Court at

Olympia, this 24th

day of June, A.D.

1980.

/s/John J. chenpegne

Clerk of the Supreme

Court, State of

Washington

35

THE SUPREME COURT OF WASHINGTON

THE STATE OF WASHINGTON,

No. 46366

Respondent,

Vv.

ORDER DENYING

EDWIN FITZSIMMONS, MOTION FOR

RECONS IDERATION

Petitioner.

The Court having unanimously

decided that respondent's motion for

reconsideration should be denied,

It is ordered that the motion be

and it hereby is denied.

Dated this 23rd day of June,

1980.

/s/Robert F. Utter

Chief Justice

93 Wn.2d 436

36