# Petition — Washington v. Fitzsimmons

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 977

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0384%3A1. Public record. Not legal advice.