*1 tеst, for facts anew. new avenues investigating Adams, therefore, enumerated in State among others that the kind newly discovered evidence must be supra, trial, sensi- probably will result change ble one and essential efficient administration justice. cannot, did the re- not, say
The trial court and we at Taylor, canted if a new testimony presented John trial, result in a verdict of not guilty would probably and, therefore, the order Peele, granting Willie we reverse him judgment a new trial direct imposition sentence on the verdict of the jury. JJ., J., Hill, concur. C. Ott,
Rosellini, Hamilton, January 36384. En Banc. [No. 1966.] L. City v. Verne Respondent, Heater, Tacoma, Appellant.* *Reported P.2d in 409 867. *2 Albert
E. Morrison and Ronald L. for Hendry, appellant. Marshall McCormick, Robert R. H. Hamilton, F. Chapin, Jr., and J. for Guenther, Edward respondent. C. J. —The defendant involved a minor was
Rosellini, traffic accident. officers who the accident investigated determined defendant was under influence him the arrest. The intoxicants took to under city jail defendant denied that he under the influence of intoxi- was at the the defendant re- cating liquor. Upon arrival jail, de- to his but was quested permission telephone attorney, do so. right nied the to to officers then administer certain proceeded to the and coordination tests defendant to ascertain
physical refused take a chemical his The defendant to so- sobriety. request He renewed repeatedly test. his briety telephone to do but was not so because attorney, permitted deny regulations permit department’s officers involving charged person intoxication with an offense expiration right telephone until after make a call Immediately following after the tests 4 hours his arrest.1 charged was administered, were defendant liquor. driving He the influence while under offense attorney on the permitted until a.m. call his attorney morning following The defendant’s his arrest. arranged he have he called stated that if had been condition. the defendant’s for a to determine blood test charged, guilty jury as A found defendant appeals judgment the verdict. entered on appeal is: Is de- on this
The issue to determined request permission to contact counsel as nial of a involving person the ele- with a crime soon of a constitutional intoxication, ment of denial prejudice resulting irreparable to his defense? prosecutions the accused shall have the *3 In criminal by right person, appear in defend counsel (amendment 10). §1, 22 . . . . Const. art. prosecutions, the . . In all criminal accused shall . defense. of counsel for his U.S. Const. have the assistance amend. 6. Wainwright, 799,
In 335, Gideon v. 372 U.S. 9 L. Ed. 2d following Sup. portion 792, 83 Ct. it held that the was incorporated Sixth into the due Amendment was Amendment, the Fourteenth and is clause of therefore binding upon the states: every person 1, 1954], 1“Effective this date arrested and [October City opрortunity placed custody in the Jail shall be afforded the as any person possible telephone soon to communicate he de as long charge. as there is no toll sires any person “No shall or influence such Police Officer recommend to custody any person for him to call. selection of person offense, “No with an an element of which is intoxi- right making telephone cation, call after such a shall be denied the elapsed four hours have from the time of his arrest. persons “(Note: privileges held Phone shall be extended concerned.)” investigations, Division without consent of the
under Department Regulation No. 46. Tacoma Police prosecutions enjoy In all criminal the accused shall right ... to have the assistance of counsel for his defense.
We have followed the rule that where the lan guage of the state constitution that of the is similar to language federal constitution, the of the state constitutional provision interpreta should receive the same definition and given provision tion as that which has been to a like Supreme federal constitution Court. United States Consequently, Schoel, State v. 388, 54 Wn.2d 481. P.2d supra, every case, Gideon a means that defendant has right prosecutions. constitutional in all counsel criminal The court made no distinction misdemeanors and between applicability provision insofar as the con felonies is cerned. through
A defendant’s be heard his own counsel Fretag, unqualified. Chandler v. 3, 348 U.S. 99 L. Ed. Sup. 4, 75 Ct. 1. supra, Amendment case,
Prior to Gideon Sixth part of the Fourteenth Amendment. was not considered applied Supreme fair trial” Court “fundamental whether conviction should be set aside test to ascertain deprived of counsel. Betts the defendant where Brady, Sup. 12522, 86 Ed. Ct. L. court stated: prohibits Amendment
The Fourteenth the conviction and of one whose trial is offensive to the com- incarceration right, ideas of fairness and mon and fundamental may particular in a of counsel case result while want lacking fairness, we such fundamental conviction say Amendment that the embodies inexorable cannot any offense, court, trial for or in command that no *4 justice fairly conducted and accorded a defend- .can be by represented counsel. ant is not who 1448, 2 433, 357 U.S. L. Ed. 2d California, In Crooker v. (followed LaGay, Sup. in Cicenia v. 357 U. S. 1287 78 Ct. Sup. 1523, 1297, Ct. Culombe v. Con 2 2d 78 504, L. Ed. 1860), Sup. 1037, 81 568, 6 L. Ed. 2d Ct. necticut, 367 U.S. supra. Wainwright, Brady, supra, Gideon v. v. 2Betts is overruled 737 Brady, Betts v. Supreme rule in followed the Court concept finding not been supra, had the “fair trial” in that violated. problems than it solved.
The “fair trial” rule created more country encouraged throughout prisoners for ask It corpus, hope cases would that their habeas reviews be reversed. Brady, supra, placed upon the burden trial courts
Betts v. might appellate anticipating take court what view an regard ideas of fairness fundamental to the “common and many right” that case; and, the result was each proceedings. corpus in habeas convictions were set aside laid down that definitive rule such as This indicated that a trial to enable case, in the should be formulated Gideon judgments open to attack not be courts to enter by ground. corpus on this habeas part the Fourteenth Amendment
Since Sixth is now the “fair rule not determinative Amendment, trial” issue. L. Ed. 2d 52,
In Hamilton v. 368 U.S. Alabama, Sup. 114, 157, Ct. devised to ascertain new test was right “at arises when the to counsel attaches. stage proceeding.” v. critical in a criminal White Sup. Maryland, 1050, 2d Ct. 59, 193, 10 L. Ed. hearing preliminary Supreme was a Court held that a stage” Maryland proceeding. The reason “critical holding appeared to that a defendant’s for the court’s hearing guilty preliminary plea without entered in the trial on the merits be introduced counsel, could later against Thus, him. the court found in evidence required hearing stage” prehminary a “critical preliminary appointed for the accused counsel to be hearing. Washington, Haynes 373U.S.
This is accord Sup. held 513, 83 Ct. where state officers 10 L. Ed. 2d per- for 19 hours and refused to incommunicado an accused lawyer telephone wife or until make a call to his him to mit *5 738
after Supreme he confessed. The Court held that his con- involuntary fession was and inadmissible under the due process clausе of the Fourteenth Amendment. Rhay,
In In re Pettit v. 62 515, Wn.2d 383 889, P.2d we applied the supra, rule of the Hamilton cases, and White granting corpus setting a writ of habeas aside con- stage viction. proceed- We held that a “critical in a criminal ing” preliminary hearing arose at a where the defendant was pre- denied counsel and the evidence adduced in the liminary hearing charge. was used to him convict analogous
An case to the one at Krozel, bar is State v. Supp. judgment guilty Conn. 266, 190 A A.2d 61. was ground aside, set on the that the defendant had been denied his constitutional assistance counsel. inAs suspicion driving case, the defendant was arrested on while intoxicated. He was taken to the barracks and given sobriety tests, after which he was with the requests offense. The defendant’s that he be allowed to attorney call his and his wife were denied. This refusal policy police department on the was based to forbid suspected of accused intoxication to make a call or to telephone period use a for a 4-hour after his arrest. App. Newbern, Another case is In re 862, 175 Cal. 2d Rptr. discharged 80, Cal. 78A.L.R.2d 901. defendant was custody opportunity pro from where was denied an charge on a cure a blood test of intoxication thus prevented obtaining necessary evidence to his defense. process. held that this was a of due court denial Commonwealth,
In Winston v. 188 Va. 49 S.E.2d jailed driving was arrеsted and for where defendant brought intoxicated, before while and was the com- mitting authority hours, where the statute di- 4% arresting produce officer defendant rected committing authority, charge had before a “forthwith” stating dismissed, the court at 395: to be perfectly apparent, too, said, from what has been It is illegal detention the defendant has that as result might deprived of material which been forever have evidence supported that he was innocent of the his claim According the un- charge disputed during held. he was under which lapse testimony, the time after medical physical jail, a examination held he was which ineffectual. useless and have been 397: And, also, at produc- opportunity the defendant of denied Since *6 trial,
ing at a new we remedied cannot be such evidence judgment opinion be reversed should that the are of prosecution the dismissed. Super. the 444, 208 A.2d Johnson, 87 N.J. State suspected for 26 addict of
court held that detention a by request his own refusal of to be examined hours and his being charge physician under a vitiates his conviction on the that: influence of narcotics. The court stated by physi- opportunity
the examined a denial of an to be coupled deten- the 26-hour choice, cian his own with right deprivation defend his tion, constituted paragraph liberty guaranteed by Article I, own Jersey New Constitution, ... stage” reached
At time a “critical what was when, the moment defendant’s case? It was no later than immediately their after officers had conducted they sobriety interrogated defendant, tests for and had charged him with offense. point prevented
The denial of counsel at the defend- charge preparation ant’s effective his defense against necessary present him. It was for him to evidence showing intoxicating he that was not the influence of under liquor way at the time A of his arrest. most effective present through such evidence would be disinterested wit- nesses who could observe condition soon after his arrest his by crime, or after he had been booked for the blood administered a doctor. The evidence of intoxication test dissipates passage The 4-hour rule im- of time. regulation recognizes posed by that after hours intoxicating liquor person will under the influence of sobriety a state of so that is safe to be have reached telephone. may released, use a way virtually
The defendant had no other to obtain the necessary proof of his innocence. urges plaintiff that, had because defendant tending
access to innocence, other evidence to establish his right the denial of his did obtain best evidence greater prejudice jury likely A his defense. is not to attach weight testimony to the defendant, a friend of the whose inclination aid him can of an assumed, than to that arresting sаy person officer. It will not do to that a who opportunity convincing is denied an the most to secure deprived kind of evidence has been of a constitutional deprivation that such but did not harm him. preparation
It was essential to the effective defense permitted defendant be to communicate with his attorney immediately charged, after he order to pretrial period secure assistance of counsel in the as re- quired the constitutional standards. *7 regulation Department’s
The Tacoma Police is also in conflict that, with a statute of this state. It will be noted police person prohibit while it authorizes officers to offense, with an intoxication, an element of which is personally making telephone 4 before hours call elapsed after have it them arrest, his does not authorize anyone prohibit communicating else from in his behalf attorney during period. wife, his friends, or Even regulation so, not conform does the mandate RCW (5) provides: 9.33.020 which having person custody No officer or control body liberty any person arrest, shall under permission person refuse to such to communicate arrested attorney, subject any
with his friends or with person nor any personal violence, under arrest to form of indignity purpose intimidation, torting ex- or threats for person incriminating from such or a statements Any violating person provisions confession. of this guilty section c [1909 shall of a misdemeanоr. 249 § .] 359 . . .
741 stage” harmony This rule statute is with the “critical by Supreme Alabama, laid down in Hamilton v. Court supra. regulation city by re- chief of a cannot peal legislature; power passed by statute the state legislature only. is regulation Insofar as reserved to statute, and of is in conflict with the it is void no effect. stage” the defendant rule,
Under the “critical the denial to attorney after the officers had con- assistance of his questioning, their violated his constitu- ducted tests and process3, con- tional have counsel and due thereafter void. viction obtained Applying test, the the former “fair trial” same result pre- here the defendant was be achieved because which, might obtaining prove tend to vented from evidence disappeared have innocence, and which evidence would clearly held incommunicado. It within hours while was prejudice. demonstrates judgment is reversed and action dismissed. Hale, JJ., Hunter, concur.
Hill, Donworth, Weaver,
go
(dissenting)
criminal is to
free
J.
be-
Finley,
—“The
Perhaps might
it
cause the
seem
constable has blundered.”
so,
borrowed from a
but
sentence has
been
news
pithy
terse,
Cardozo, J., of the
tabloid. It is a
evaluation
People
juristic problem
v.
242 N.Y.
Defore,
13,
involved
As an evaluation Cardozo’s words can be
From it that I do is obvious majority, most the result nor with reached say given support I must result. But reasons of that agree First, matters: that I with the two do on taking authority responsibility for courts do have a aggressive overly respecting over-zealous, corrective action prosecu- negate police practices complicate which unreasonably deprive may tion violations of law and/or happiness liberty, pursuit of life, and the the law violator however, action, Corrective due law. without turning loose as criminal not necessitate does offenders judicial police. ex- Such treatment shock form of produce any, propensity perimentation little, too if has my judgment, furthermore, results; the intended social values experimentation inimical to other is too such law-abiding society dangerous citizens to be and too judiciary.. indulged by might well include vein, corrective action
In this pro- contempt of court the initiation citations use of specific offending public against ceedings officials over-reaching, involving over- instances criminal cases ago suggested years Such was activities.4 zealous Wig- legal greatest scholars, the late John one of he observed: related context In a more. Action, 11 Rut Contempt Police of Court Unlawful 4Blumrosen: (1957).
gers Law Rev. *9 way justice enforce “The natural to do here would be directly, healthy principle Amendment the i.e. of the Fourth by sending highhanded, marshal for the over-zealous thirty- imposing warrant, who had searched without a day imprisonment contempt Constitution, for his proceeding con- then of the and to affirm sentence (Mc- Wigmore, § 2184a, n. 1. victed criminal.” Naughton Evidence 1961)
rev. regu- plausible judicial Another efforts to alternative to legislative inappropriate police late estab- conduct would be lishment of state on administration. commissions high composed Such caliber, commission would be nonpartisan lay professional people. The commission allegedly complaints would be authorized to receive seri- police, involving, example, ous misconduct for denial operations, of counsel, unreasonable search and seizure transgressions rights other of criminal constitutional quasi-judicial body defendants. This administrative would hearings public testimony prop- hold and take order to erly complaints infringement process evaluate of due rights by police. appropriate In circumstances require police commission would be authorized to admin- impose disciplinary istrative officials to measures reprimand, suspension pay form of or without for censure, offending enforcement law officer. commission could conceivably empowered compensatory further be to assess damages against municipality, county, or state for aberra- tional of law enforcement officers. conduct things training policemen,
In addition, such better for improved compensation tenure, and increased and retire- might surprisingly ment benefits also have a constructive any event, effect. In corrective with effectuation appropriate infringe- administrative controls relative to rights, prеsent justification need ment of due or judicial prosecutions dismissal of criminal should be considerably. eliminated or lessened certainly agree Second, I that, consid- ering the case, circumstances the action or conduct denying request Mr. Heater’s that he be
allowed,
telephone
attorney
questionable
most
inappropriate.
fact,
Heater’s re-
denial of Mr.
quest
considerably
uncompli-
was indefensible,
more
mentary
viewpoint
apt.
characterization
This
supported,
I believe,
several
There is
considerations.
no
Heater
evidence,
thereon,
contention based
that Mr.
physically
mentally
operate
was unable to
and/or
*10
telephone
use the
because of intoxication or otherwise.
questioned, processed,
Furthermore,
after he
and
police,
purpose
proper
booked
no
enforcement
law
by denying him
was served
reasonable access to his attor-
ney
already
telephone.
point,
At
via
that
had
driving against
they
made a case of drunk
Mr. Heater or
able to
never would be
do so. He had no criminal associates
by anyone
and
and
violation of
was not aided
abetted
So,
claim
in favor
law.
the orthodox
cannot be asserted
investigation
that further
and further interro-
gation
necessary (a)
up a
of Mr. Heater were
to button
against
(b)
him
case
to ascertain and аrrest confeder-
attorney.
permitting him to
Even
ates, before
contact his
availability
telephone
“pokey,”
facilities at the
limited
evening
plus
interviewed,
a rash of late
customers
processed
(by
police personnel
or booked
limited
on
(for
night
withholding
duty)
be no excuse for
telephone
period)
or even lesser
reasonable access to
hours
(substantially possessed
citizen
of his
facilities
faculties)
comparable
per-
those
under circumstances
again,
taining
follow,
But
it does not
to Mr. Heater.
certainly
agree,
this case should be
I cannot
dismissed
dangerous
irresponsible
of his
and Mr. Heater absolved
proclivities and conduct.
anti-social
agree
signed
dissenting opinion
I have
substan-
tially
expressed
Hamilton,
therein
with the views
J.
length
compelled
However, I feel
to discuss at some
certain
strongly
my
apropos
points
own,
held views of
certain
employed
majority’s
general approach
made and
appeal.
problem in this
resolution of the basic
very
company
part
at the
I
outset with
approach
problems
respect
proper basic
such as
to the
appeal. Simply
the one before the
court
stated, it is
my
(a) presuming
conviction that there is a choice between
prejudice absolutely
conclusively
given
or
when
certain
(b) determining
prejudice
basic
only
facts
resulted
if
thorough
after a
consideration and evaluation of the entire
pattern
fact
involved. Mr. Justice Clark has noted that such
Supreme
a choice
confronts
United State
Court in all
involving alleged
process:
cases
denials of due
involving
It is true that in
most cases
claims of due
deprivations
dice
require
showing
preju-
we
of identifiable
procedure
to the accused. Nevertheless, at times a
employed by
probability
the State involves such a
prejudice
inherently lacking
will result that it is deemed
process. (Italics mine.)
in due
Estes
Texas,
v.
(1965).
532, 542
respect
With
cases,
to counsel
Justice Clark has
stated:
Wainwright,
Likewise
(1963),
Gideon v.
the same rule, in different contexts. Estes supra, p. Texas, 543. *11 necessarily Does it prejudice pre- follow that should be every sumed in each and in instance which there is a de- request speak nial of a to think to I counsel? not. Further- I definitely more, think that conclusion is in unwarranted view of the facts sup- involved herein. The reasons which ported prejudice patterns a conclusion of inherent in fact such the one involved in Gideon are not to be in found the record of the instant case.
I police heretofore have the characterized actions of the my judg- in the instant matter as But, “indefensible.” readily the ment, too concludes that it in- must evitably irreparable preju- that follow Mr. Heater suffered police the dice as a result of ill-аdvised conduct in the prefer carefully Instead, I instant matter. to examine prejudce all of the facts order to determine whether re- sulted.
Virgil was the driver of a Heater car involved a city intersection collision with street Tacoma another auto- Fortunately concerned, mobile. was for all the accident apparently personal property a minor one in terms of damage. charged Mr. Heater the and, was with vernacu- driving. appealing lar, this was convicted of drunk from police conviction, he denied him asserts that Tacoma right legal period a he to of 4 hours after counsel driving. charge was on the of drunk arrested and booked Apparently, pursuant to a this action was regulation standing department applicable anyone being (ostensibly It intoxicated. is contended in a Fourteenth Amendment criminal due consti- context) legal (a) a tutional counsel would have had experts per- test made medical chemical blood-alcohol during taining period Mr. Heater’s condition the 4-hour (b) proved incarcerated, he the test would have he was (c) influence, hours, that after not under dissipated alcohol is is ineffectual as substan- such test body period tially human of time. off thrown appellant’s denying words, it is contention that him In other inextricably equated counsel, with and when unavailability of a chemical blood test indica- rеlated to period within the crucial 4-hour condition after tive of his irreparable prejudice to his defense arrest, constituted driving charge against while drunk. At the trial investigation report into was admitted Heater, Mr. report, stipulation pursuant of counsel. This evidencé, testimony appellant Heater, plus establishes fol- day try lowing: taken the off work to out He had having glass glass of beer car; admitted and a his new Family p.m.; juice at Tavern about at 6:30 tomato Parkway Tavern, drove to short dis- there he left p.m. arriving away, There he about three had tance according him, were which, small 15-cent glasses beer minutes, about 45 after which he glasses; consumed *12 lavatory. Appellant to the went blamed sick became lavatory He was trouble —ulcers. stomach this on quarters of an hour. bartender came in three about Appellant wrong. advised the bartender was what see to stay until he felt there better. However, to he wanted agreed appellant car, turned on leave, to went out to his sleep this the radio, and went to for hours. As to appellant testified: record shows long you
Q did A For How sit there? two hours. Listening sleep. up asleep. fact, I to I fell music, went to I better, bad, When woke I felt a lot still and I but get wanted to home. ... I started the car and going Broadway home, went toward out ... Incidentally, with reference admitted to Mr. Heater’s consumption closely (a) beer, related circumstances (b) that he became “sick at the he fell stomach” and asleep logically in his automobile for lead one hours could simply to infer that he much—in too fact, had too much sage experts much—to the re- drink. counsel of sundry hardly sults scientific tests are needed to deter- plus equal mine whether two two is four.
Shortly appellant after the awakened and started to drive ap- home, occurred; the intersection collision automobile pellant subsequently was arrested and taken to the promptly permission telephone station. He asked his lawyer. Subsequent This was refused. He was booked. requests approximately contact were counsel denied conformity four with the hours aforementioned Tacoma regulation. Department 4 a.m., Police At about Mr. Heater telephone lawyer, Morrison, Mr. was who allowed through arranged promptly professional thereupon bail bail bondsman. appellant’s
Going moment: for a Just after back arrival opportunity he station, was offered to take at the Harger-sobriety-test. refused, did He but submit by police sobriety administered officers. The tests other objection, spe- police report, without evidence admitted part: cifically reads, [appellant] was removed to the one station and Driver one Driver Harger Test, which refused. offered poor given tests, influencе with the alcoholic results,
was which confirmed original opinion of the officers. He driving, drunk, and drunk reckless City Jail. into and booked *13 . . . It noticed in the that his . was station breath strong, clothing orderly. flushed, face was His attitude his his was polite cooperative. At times he was was eyes pupils poor bloodshot, the combative. His were had light. swaying. reaction to was His balance was His walk
swaying. Turning Finger-to-nose was uncertain. Picking up speech test, uncertain. coins he His did well. was fair, but slurred. appellant, objection,
On cross-examination, tes- without specifically tified as follows: just driving A I was around I car. I was town. had new
mostly The visiting, just driving Q I around town. see. day you accident, arrested, when were Thursday. your day MyA What is normal off? normal day worked that Saturday Sunday. Why you Q off is hadn’t day? day A I didn’t want to. I took the off. figured enough, working I had a so car I’d new been just day you Q I took the Heater, off. Mr. do have a problem drinking? you No, Are an alcoholic? A you Q I sir, don’t believe so. Have ever been convicted Q Yes, of a crime? I have. A In I 1936, When? A. you Felony Q believe was. were convicted of? A it What —larceny. Anything Q Q A else? That’s all. Let me you. you May, being 1949, ask Were not convicted yes. yes. Oh, That, in an A intoxicated automobile? August, you driving Q convicted Weren’t driving? influence, AI while under the and reckless guess you you Q so, if have it there. Were not also con- negligent driving June, 1954, victed of not operator’s having license because it was revoked? A you guеss Q In were I so. October not also con- operating influence, a motor vehicle under the victed of driving? suppose Q Yes, A I so. De- and reckless again you convicted of the cember, 1959, weren’t same I has the record there. don’t A If he remember offense? being Q remember You don’t convicted in 1959 that. driving? Q A Yes. reckless You were? of drunk and A Yes. appeal characterized is
The issue on request permission the denial follows: Is as person as as soon with crime contact counsel involving of intoxication the a con- the element denial of right resulting irreparable prejudice stitutional defense? emphasized
Counsel for Mr. Heater, hereinbefore, flatly proposition seems to stand on the evi- that medical only dence of a blood test was the best and the reliable simply evidence available to defend his client. But this is opportunity not true. Mr. Heater was afforded an to take a Harger-sobriety-test shortly after at the arrived appeal *14 station. His entire thesis in that he this is intoxicated. If is true, then he control of his facul- had allegedly ties. In view of his status, sober Mr. Heater presumably could have ascertained whether or not Harger properly test was administered officers. part Its results would have been available to him as a of through testimony, his defense at the time trial, of own his driving or otherwise. With his drunk convictions, record of likely Harger proper it would sеem that the tech- test, nique efficacy determining for its administration, its and sobriety, beyond mystery would not have been a com- prehension. significant, It is I think, that no effort what- made soever was to introduce other evidence to counter the driving charge against drunk of Mr. Heater. The record people during period had shows he seen a number of a of prior hours several accident. Of some these, doubtless had seen and would have remembered Heater Mr. and the sobriety. appears quite health and It state of his to me rational, rather than reasonable and inconceivable, that people would some of these have been wit- available as Charges proved have been asserted, nesses. drunkenness variety including disproved in forums, courts, a and generations before advent chemical blood-alcohol tests. quite shaky respects.
Appellant’s other It claim speculation assumptions, requires con- rather tenuous and (1) Attorney jecture the effect that: Morrison would legal accept employment pleased Mr. from have been p.m. telephone between the hours of 11:30 Heater via attorney (2) simply a.m.; that would not have 2 or 3 arranged professional telephoned bondsman, bail and a (cid:127)750 Mr. Heater advantage
advised. to take temporary other at the quarters accommodations sleeping public Jail; Tacoma that Mr. Morrison would City (3) immediately assign- a work time-consuming have undertaken personal doctor; ment; have a telephoned (5) that would (4) traditions of the Hippocratic that doctor best arisen rest, (b) oath would have forsaken (a) sleep the morning, the wee hours of emergency such to the Tacoma Jail (c) City Mr. Morrison accompanied Mr. steady Heater’s and anxi- sample to take blood arm; awaiting (6) sample, upon being tested, that ously Mr. Heater’s to be shown bloodstream Simon have contained at least it less-than-excessive pure, (7) finally, firewater; foregoing amounts of would have exonerated Mr. chain of inevitably events the charges against him. Heater a dismissal required if the had and had enough, cooperated Curiously Morrison, Attorney but Mr. Heater to telephone permitted been able to find doctor cooperative the latter had not the result- technician take blood sample, or laboratory test a blood-alcohol of evidence almost ing unavailability *15 grounds be as urged not now dismissal would certainly conviction of the the charges criminal and appellant. of the and speculation conjecture area of in foregoing the With some of with awareness certain mind, particularly and of relationship chain between (a) the links in missing (b) and the signifi- counsel claimed right denial test, unavailability blood-alcohol I think the cance of be by should asked this question simple ap- only that i.e., Heater treated Mr. unfairly; was Was court: pellate no fault of through own, unreasonably prejudiced, he consult with an counsel opportunity denial the by in the the instant by case? booked after was well as ponderables, imponderables, some Considering case, in record the entire the question by suggested reasonably answered, think, I rationally can be posed words, in a process due In other of law negative. in the the denial of that counsel under the context, I conclude not absolutely did irreparably this case in circumstances
751 against defending the prejudice Mr. Heater himself charge driving. drunk foregoing to con- an effort discussion constitutes entire in not, or view of the sider determine whether prejudiced counsel. the denial of record, Mr. Heater was rejects opinion impliedly, expressly, majority if conclusively approach in an which favor of this alternative given presumes prejudice the or attributes defendant — upon heavy emphasis facts, with denial basic alleged right performed blood test counsel and the to have a during allegedly 4 crucial hours. disagree strongly
I that most with contentions approach holding required majority and the are legally mandatory in recent or fact made as a result of Supreme concerning United States right Court decisions upon patterns to counsel. Based the fact each of following readily agree I cases, v. that Gideon Wain- wright, Sup. 335, 9 799, 792, 372U.S. L. Ed. 2d 83 Ct. Hamil- Sup. Alabama, 52, ton v. 368 7 L. 114, U.S. Ed. 2d 157, Ct. Maryland, 59, and White v. 10 L. 193, Ed. 2d Sup. highly 1050, denial of the Ct. to counsel was held, prejudicial consequently, appropriately and, violation criminal due constitutional safe- guards. I think While decisions those cases were right, eminently proper; just, nevertheless, I reach the they strictly applicable are not conclusion that and cer- require tainly do not results attributed to them majority instant case. agree majority supra,
I case, Gideon departure previous from the constitutes a decision of the Brady, 316U.S. L. Sup. 86 Ed. court Betts But, I think that the 1252. takes Ct. too much giant step, concluding one, unwarranted of a Supreme of the United other decisions States Gideon time) clearly present support (up require Court *16 reaching and extreme majority’s far as the decision as a Perhaps there are case. some dicta the instant in in give encouragement support which case Gideon to reached the instant conclusion case. given I However, effect, be the decision Gideon should case. It is a in the Gideon think, relation to the facts controlling guide, only binding in those and should be identity subsequent at least where there is an cases —or pat- comparability parallel in terms of factual a close case did of counsel in Gideon terns. The denial booking by police, much but occur at the time of arrest and may no there be mistake of trial. So later —at time by quoting from the Gideon this, I the facts set out about case follows: charged court in a Florida state with
Petitioner was poolroom having intent to entered a broken felony a under This is commit a misdemeanor. offense Appearing and with- in court without law. Florida funds appoint lawyer, petitioner the court coun- asked out a colloquy place: following whereupon took sel him, sorry, I Gideon, I am but cannot “The Mr. Court: you represent appoint case. Under Counsel to only Florida, the time the of the State laws represent appoint a Defendant Counsel to Court can capital person with a offense. is when that I appoint your deny request sorry, have to I will but am you in this case. to defend Counsel Supreme The United States Court “The Defendant: represented Counsel.” says to be I am entitled jury, conducted his Gideon to trial Put defense before expected layman. He be well as could about as from jury, opening cross-examined statement to made an presented in his own de- witnesses witnesses, the State’s argu- testify himself, and made a short fense, declined charge “emphasizing innocence to the contained ment jury case.” The returned in this filed and in the Information petitioner guilty, was sentenced to serve verdict (Italics mine.) prison. years in the state five 335, 336. sрecifically does overrule Gideon
There is no doubt Brady, case of Betts v. in the prior the court decision facts, again, look supra. us to it behooves But Brady analyze opinions carefully in Betts required may concluding what Gideon before Supreme United States the action case instant *17 opinion Brady. overruling In the Gideon Betts v. Court Supreme Court further: states the United States upon that he had been Betts claimed The facts which ap- right unconstitutionally counsel to have denied upon strikingly pointed which Gideon the facts him like to assist are claim. constitutional here bases his federal Maryland robbery court. state his indicted in a Betts was for judge arraignment, lack trial he told the On of of appoint lawyer and asked the court to hire a funds prac- not the that it was one him. Betts was advised for indigent county appoint for de- counsel tice in that rape except He then cases. murder and fendants pleaded guilty, summoned, cross-ex- had witnesses and witnesses, own, examined his amined the State’s guilty by testify He not to chose found himself. eight years judge, sitting jury, without a and sentenced to sought prison. Gideon, in corpus, Like Betts release habeas right alleging that he denied the had been of counsel violation of the Fourteenth assistance any relief, on Betts was denied review Amendment. appoint was held that a this Court affirmed. It refusal charged felony indigent with a counsel for defendant necessarily violate the Due did not Process Clause of given Amendment, Fourteenth which reasons only applicable Court federal constitu- deemed to provision. The tional Court said: process] [of denial due “Asserted an is to be tested totality given appraisal of of facts in a case. setting, may, in one That which constitute a denial shocking fairness, fundamental to the universal sense may, justice, circumstances, in other light considerations, other fall short of such denial.” p. U.S., at 462. Treating rigid concept due as “a more less envisaged specific particular than fluid those other Rights,” provisions of the Bill of the Court held that appoint particular refusal to counsel under the facts and in the Betts case was not circumstances so “offensive fundamental ideas of to the common and fairness” as to process. to a denial of due Since amount facts nearly the two cases are so indistin- circumstances of Brady holding guishable, think the Betts v. we if left reject require standing would us to Gideon’s claim that guarantees him the assistance the Constitution counsel. Upon full reconsideration we conclude that Betts Brady (Italics mine.) should be overruled. 338, 339. Closely analyzed, indigent the Gideon case held that an felony with a under state law has a under legal the Fourteenth Amendment must be furnished public expense represent counsel at and advise him at Only the time the trial a state court. diсta and subse- quent exposition law review and other editorial thereof take Gideon further than this. *18 opinion
As I read and construe the of the United States Supreme Court in Hamilton v. Alabama, 368 U.S. 752, Sup. clearly unequivocably L. Ed. 114, 2d 82 157, Ct. it proposition right stands for the that the to counsel is con- stitutionally significant under the Fourteenth Amendment due in clause a state court at the time the ar- raignment capital in of a criminal offender a case. The opinion less, it But, does no but does no more than this. unique so, even mention should be made of somewhat significant meaning I think it in of the fact, and a one terms namely, arraignment decision; of this that at the time of procedural rights in an accused Alabama certain and con- irrevocably sequences are determined under Alabama law. paragraph opinion The of the court’s Hamilton first supra, Alabama, v. states: having capital petitioner case, is a been sentenced This charging breaking count of an indictment death on a entering dwelling night at intent to ravish. claiming appealed, he had been denied Petitioner counsel (Italics arraignment. mine and time footnote at the omitted.) opinion: it further stated
And is
may
importance
the function and
of ar-
Whatever
jurisdictions,
enough
raignment
we have
in other
said
stage
it
a critical
in Alabama
What
is
that
criminal
to show
may
happens
proceeding.
trial. Available
there
affect the
whole
may
irretrievably
be as
lost,
defenses
they
asserted,
there
are when
then and
if
represented
counsel waives a
for stra-
accused
omitted.)
(Footnote
tegic purposes.”
755 Referring L. 45, 69, 287 77 Alabama, Powell v. U.S. Sup. the United States 55, 527, Ct. 84 A.L.R. 158, Ed. opinion Supreme Hamilton then states: Court in the guiding the trial “lest hand of counsel is needed at unwary only or that concede which bewilderment greater justify pay penalty ignorance than the law they which is could exacts for the offense which State Missouri, committed.” v. in fact and law Tomkins pitfalls But the or like ones face 485, 489. same 323 U.S. an accused having arraigned in Alabama who without charge pleads capital When one to a counsel at side. stop determine counsel, we do not without whether benefit (Italics mine.) prejudice resulted. says majority opinion in the instant case Supreme opinion of the United States Court White Maryland, Sup. 10 L. Ed. 2d Ct. (1963): holding appeared
The reason for the court’s to be plea guilty preliminary in a a defendant’s entered hearing counsel, could later in without the trial on against Thus, be introduced evidence him. merits preliminary hearing a “critical court found stage” required appointed counsel for the to be ac- hearing. preliminary cused for a say *19 overstatement, incorrect,
I think it is an and prehminary the denial of counsel at the the court held that per proceeding crucial, se and that a denial of counsel was inherently prejudicial regardless stage would be at — actually transpired. Actually, the crux of the of what supra, plea guilty case, is that a the White of in decision legal advice, counsel and and was entered without was subsequent in at admitted evidence fact, was usable—in Thus, in of the defendant. it is relation conviction trial and right case that counsel at the facet to this significantly hearing stage important preliminary and, to denial of circumstances, amounted Fourteenth under process protection. In due other criminal Amendment proba- plea guilty entered without counsel had words, the subsequent trial. Under such circumstances, at value tive unfair to the defendant. prejudicial and This is this was quite my judgment, concluding different, in that the Fourteenth Amendment of United States Constitution requires per significant that the to counsel is se in a due sense, and be must to criminal afforded offenders any preliminary hearing in inquiry without and evaluation purpose, every purpose as to and in what- fact for soever. summary, my the basic difference between conclu- ap-
sions proaches those lies the choice of problem. Concisely to the stated, the demarcation point probably company is whether or not Gideon and prejudice necessitate a conclusion inherent" result- —and ing dismissal of the when, convicted if, defendant — stage.” my counsel is at a “crucial It denied conclusion disposition only if, that such a should result if, in view particular the entire it can record be determined that the prejudiced by involved was fact defendant the denial of counsel. courts,
In this I think it connection is the function rights proper one, and a consider and the claims defendant, abstract, an individual not in the but relation worthy rights to an inference of some and interests claimed requires, by organized society. suggested as This Betts disregarded Brady, supra, completely v. and as Wainwright supra, Hamilton v. Alabama, Gideon balancing weighing values, of interests and conse- quences. process, conceptualista like words, due other lan
guage Constitution, of the United are States not self-defin applicable automatically. ing, self-implementing, Life them; and content, into must breathed substance meaning judiciary. accorded This must be function founding formulating fathers in understood was well guiding govern a basic, as document of the Constitution recognized, is more and more ment. function even proper judiciary today, an intended and one for which the *20 authority. responsibility and In the Mr. words of Jus has concurring opinion in his in Joint Anti- Frankfurter tice Refugee McGrath, Comm. v. 162, the Fascist process concept due elaborated as of constitutional follows: process” requirement “due of not a fair-weather is periods respected in It must timid assurance. protects trouble; of aliens as and times it
of calm legal process,” аs citizens. “due unlike some But well conception rules, is not technical fixed content with place Expressing and time, circumstances. unrelated analysis by respect does its ultimate enforced it feeling just of for treatment which has been law through Anglo-American centuries of constitu- evolved history process” civilization, and tional “due cannot be imprisoned within the treacherous limits of formula. profound Representing a attitude of between fairness particularly more man, and man vidual between the indi- government, process” compounded “due is history, past reason, the decisions, of course of and stout strength confidence democratic faith which profess. Due is we not a mechanical instrument. yardstick. process. It not a is a It is It is a delicate adjustment inescapably involving process of the exercise judgment those whom the Constitution entrusted unfolding process. with Fully powers given aware of the enormous thus to the judiciary especially Supreme to its Court, those who put judiciary truly founded this Nation their trust in a judges independent subject to the fears or allure- —in very ments of a limited tenure and nature their passing partisan function detached from influences. Legal Cardozo, in the implies Paradoxes Science, judges, sense, are like oracular-like arbiters, whose public compromise role is resolution or of antitheticals— opposing concepts. values and In this frame of reference case involves two instant antitheticals. On the one rights equated is the individual and side there liberty concepts and freedom. On the other, there rights, society, group equated interests with the con- liberty through government cepts ordered freedom The two under law. considerations or abstractions, separated as not sense, can be related to one each other. conceptually purposes however, even This, of labora- tory unrealistic. dissection, is Consideration of an indi- *21 rights brings subtly
vidual fact, and his in about, precipitates, rights society consideration of or the of the group. This, in of turn, leads a consideration the separate apart, individual, not as a member of but society group, and the and vice versa. New individuals resign have been able to from the human race or society. they easily today. planet Nor can has do so become too antitheticals hereinbefore small. two posed, forensically, tentatively are extremes. or at least posed, they suggest relationships in As other world —a liberty which to a world in which is absolute contrast (assuming liberty hypotheses no are theoreti- exists these society against cally possible); a totali- an anarchistic government no rules one; tarian a world of no government. and all contrast to a world that is all rules government American-way world, Our our structurе attempts polar operation, ex- each of the avoid its emphasizing in the Golden Rule tremes, greatest greatest good principle for the of the and the requires, course, that line be drawn of number. This many by times, extremes, between someone, somewhere many the re- and over. Much of situations, and over authority performance sponsibility of line- judiciary balancing drawing, function invested by constitutions. national our state and appellant me that
In the case it seems to instant presumption of innocence role of the misconstrues any problem balancing process of concomitant in by justice judgment, my process. the scales of due presumption innocence not so of are reason of require appellate weighted as to an of the accused in favor ignore jury portions -court trial even a court —or —to point preponderate^ evidentiary toward record which unquestionably guilt. a defend- probability While beyond proved doubt, a reasonable guilt must be ant’s process (specifi- appeal denial of due on his assertions of denial cally case because in the instant presumed conclusively to be well counsel) not be should appellant my judgment that the it is reiterate: taken. To required irreparably he was should be prejudiced demonstrate that the denial of counsel. appellant coursе, Of claims such as those asserted dangers continually remind herein us today, would, assert There are even those who state. signs significant in that di- tendencies there are gov- any thinking problem of But, rection. about this dangers, inherent ernment and its automatically particularly former, should courts, put drop suspect of a and as a on trial at the hat every simply case because of matter of course *22 process aspect allegation of as to of of denial due some activity. Assumptions enforcement that all criminal law policemen fools, knaves, enforcement are law officers and agents potential or actual brutes, as well as or sadistic just police state, Furthermore, not true. are of a balancing weighing assumption of values and that dangerous tendency in is the courts interests of again, just not state, is true. of the direction Anglo- inherent, traditional, fact our function is system jurispru- common-law, constitutional of American authority placed Responsibility must and dence. ideally con- in a most conceived and even somewhere, democracy. working I not think do that stituted responsibility authority plenary and final and somewhat making judgments balancing value interests appellate misplaced in our and other courts is decisions reassuring particularly country. that the work is It in this continuously public scrutiny open is courts of the remotely, judges, if even are awаre that criticism, opinion. public of strong disagreement concluding, note I must
Before majority reasoning that the denial of coun of prohibited by, case was the instant sel 9.33.020(5). It seems anrl of RCW a violation constituted reading simple 9.33 RCW from a very me clear involving only applies a confession in cases .020(5) it 9.33.020(5) incriminating reads: RCW statements. and/or 760 person having custody
No officer or and control body liberty any person arrest, or under shall permission person refuse to such to communi- arrested attorney, subject cate or with his friends with an nor any person personal under arrest form of vio- indignity purpose lence, or intimidation, threats for extorting person incriminating such statements of or a violating Any person provisions confession. (Italics guilty this section shall be of a misdemeanor. mine.) certainly
The instant does involve an case extorted incriminating Thus, statements. the statute confession is not applicable case, the instant and reference it support lends no to the decision of the herein. My 9.33.020(5) interpretation application of RCW supported by analysis found in statute de- Haynes, 364 cisions this court State Wn.2d (1961), Miller, and in State v. 68 Wash. P.2d (1912). Pac. 1066 again emphasize society I has conclusion, must important rights claims which must be balanced
some against Mr. individuals, such as Heater’s the claims criminal due constitutional a denial of his claim of Society certainly rights has a as a in this case. imрose in- sanctions, conduct to anti-social deterrent cluding *23 imprisonment, who for those fine and/or Society right expect, has some to intoxicated. drive while penal imposition hope of these sanc- that the to or at least repeat- drunk driver from the convicted deter tions should driving proclivities. dangerous To enhance ing his expect repeated society that safety highway to has driving intoxicated will result while as offenses such (or “right” “privilege”) offender’s the of revocation highways. public use convincing proof more of judgment my that best
It is required rights than has is deprivation constitutional of highly speculative theoretical, demonstrated been swayed is “The balance appellant Heater. of uncertainty added persuasive than something more until largely appellant to the If turned loose scales.”5 is to be Su- on the recent of the United States basis of decisions preme responsibility prefer assumed I Court, to see this Considering directly by herein, I facts that Court. seriously majority States of the United doubt that a Supreme con- Heater’s Mr. Court would to dismiss vote my court the trial event, to affirm viction. vote is driving intoxicated. and to while sustain the conviction of respect, eval- In this I have difficult conscious made a but and the uation the entire record and choice to consider give emphasis surrounding circumstances, and some rights society opposеd perhaps priority of to the hoping thereby better Heater, those asserted Mr. safeguard motoring public on interests byways, highways un- state, of our without streets, rights reasonably irretrievably prejudicing in- driving dividual in drunk cases. criminal defendants (dissenting) a dis- J. order —The Hamilton, charges public intoxication, misde- missal driving under the influence of meanor, and while gross I The reasons intoxicants, a misdemeanor. dissent. giving require a rise therefor brief resume events appeal. to this evening approximately question,
On 11:15 at p.m., city purportedly Tacoma, drove defendant through light Two traffic into another vehicle. a red city investigated appeared the accident. It traffic officers unsteady feet, his that to them that the defendant was on eyes speech slurred, bloodshot, that his were reeked with alcohol. The officers formed his breath opinion and arrested him. On was intoxicated way station, to the defendant admitted to the Upon consumption three at a local tavern. arrival beers physical police station, co-ordination tests at were con- consent. results administered defendant’s again opinion of the officers. defendant firmed the denied intoxication. beers,” “three but He admitted *24 People Defore, J.,: 5Cardozo, 242 N. Y. 585. N.E.
further injured advised the he officers was not accident, ill, was not and had not visited a doctor or dentist recently. Harger sobriety He was offered a test, which he previously refused because he had been advised attorney his not to submit to such tests if arrested for involving an offense intoxication. Thereafter, defendant placed jail. At intervals after his arrival at the station, de- requested permission fendant telephone attorney to requests retained him. upon These were refused Department Regulation basis of Tacoma Police No. 46 (see 1). footnote 4 a.m., At 4 hours after his arrival at permitted telephone station, defendant was his attorney. attorney contacted a bail bondsman, who posted bail about 6 a.m. City
Trial and conviction in Tacoma Police Court en- appealed superior sued, from which defendant court. superior sitting Trial de novo before the court, without a jury, followed. Prior to court, trial in each defendant interposed charges upon a written motion to dismiss the ground request timely that refusal of his contact following counsel, arrest, his amounted to a violation of his constitutional to the assistance of counsel. He interposed ruling and, no other motions in each court, upon his motion to dismiss was deferred until conclusion of trial. superior appear-
In court, evidence of defendant’s ance accident, and behavior at scene the results physical co-ordination tests at the station, administering Department Reg- manner of Police degree ulation No. intoxication, related to by stipulation objection. was admitted and without (a) spon- took the stand and defendant testified taking day taneously employment off from because enough try had worked and wanted felt he out a (b) visiting indulging friends, car and visit with new (c) getting at sick at second tavern— taverns, two (d) falling asleep ulcers, illness he attributed to which departing (e) after the second tavern, his automobile *25 driving point his state accident, to the of the his arrest and Harger sobriety sobriety, (f) knowledge test of his (g) his station, refusal it at the and his to take (h) previous requests convictions counsel, for several liquor. intoxicating driving while under the influence of produce produced Defendant neither nor offered to during concerning his activities corroborative evidence sobriety day, either tavern condition of in or about accident, or at the as to visited or scene of his effect thereof as the same existence ulcers equi- general appearance, coherency, health, related to his driving capacity. librium or attorney called defendant from station immediately after he been called
then that had testified arrange undertaken to arrest he would have defendant’s he would then He did state have blood-alcohol test. any other assistance. rendered evidence, the conclusion of the defendant renewed
At charges. The trial his motion to dismiss court entered judgment denying findings fact, law, conсlusions guilty adjudging motion him of the of- defendant’s driving public while under the intoxication and fenses intoxicating liquor. influence
Against background, question majority state the appeal to be determined on this as follows: request permission the denial of a to contact Is person crime as soon with a counsel as involving intoxication, of a element of denial resulting irreparable right prejudice constitutional (Italics mine.) his defense? v. turn to of Hamilton then the cases Sup. Alabama, 82 157 52, 114, 368 7 L. Ct. U.S. Ed. 2d Wainwright, (1961); 335, 2d 9 L. Ed. Gideon v. Maryland, (1963); Sup. U.S. 799, 83 Ct. White v. 373 792 (cases dealing (1963) Sup. Ct. 59, 193, 10 L. Ed. 2d 83 1050 furnishing indigent prelimi- at the with counsel with Haynes hearing arraignment stage); nary v. Wash- Sup. ington, 83 1336 513, L. Ed. Ct. 503, U.S. 10 2d 373 admissibility (a dealing (1963) of a confession case 764 request
obtained after denial of a for counsel at investigative state), and assert:
(1) The sixth amendment of the United States Consti- tution has, via the Fourteenth Amendment, been extended to the Wainwright, states, supra; under Gideon v.
(2) The applied “fundamental fair trial” test, as to de- termining when the constitutional to counsel attaches process concepts, under due Brady, utilized Betts v. Sup. (1942), U.S. L. Ed. Ct. 1252 replaced by stage” has been the “critical test as found in supra; Hamilton Alabama,
(3) stage” public The “critical cases, intoxication *26 driving any involving drunken cases, or case the element upon booking charging of intoxication, is the the person; accused
(4) applied The “sum total of test, circumstances” determining validity any the constitutional convic- following request tion, a refusal to honor a at for counsel investigative stage, or accusatorial as utilized cases of Crooker v. California, 433, 357 U.S. 2 L. Ed. 2d Sup. (1958); LaGay, 1448, 78 Ct. 1287 Cicenia v. (1958); Sup. 504, 2 L. 2d 78 1523, Ed. Ct. 1297 and Culombe Sup. Connecticut, U.S. 6 Ct. L. Ed. 2d 81 (1961), totally been, be, has will or should be aban- doned. question premises,
From answer the these stating: posed by stage” rule, the “critical the denial to the de-
Under attorney after the officers of-the assistance his fendant questioning, their violated his had conducted tests process, counsel and due constitutional have (Italics void. conviction obtained thereafter omitted.) mine footnote dissenting,-1 agree premises ad- In with the first three agree conscientiously majority, I but cannot vanced everyday practicality import, or the wisdom, with produced short, I fourth. cannot of the result request permission agree to contact of a that denial charged person a crime with involv- as a is as soon counsel ing the invariably element of irreparably intoxication prejudices person’s compelling defense to an extent charge. a dismissal of the quarrel
At the proposition outset, I have no that, with police regulation question insofar as the purports to and prohibit any timely telephonic does reasonable and com- charged munication between one with intoxication and his attorney, family, doctor, friend, aor member of his regulation incompatible pertinent conflict and statutory rеquirements constitutional and and should be person struck ques- down. After such a observed, has been proper purpose tioned, and no law enforcement by denying telephonic is to be served such a communication. Certainly, he should not be accorded unrestricted and un- telephone, permitted limited use of the nor should governor, mayor, city attorney, to call the or other persons relationship like who could have no rational to or predicament. But, concern with his then if he makes a request attorney home, doctor, friend, to call his his or his telephone, e.g., and is afforded reasonable access to a a dial purpose, telephone, physical for such then his immediate intelligibility capabilities, and his coherence and ultimately him or either assist condemn serve to him. In rights unimpaired. would be event constitutional either majority’s disposition matter, however, does upon person’s not turn the bare denial of accused con- *27 statutory right telephonically and communi- stitutional majority’s attorney. the conclusion that cate with his type, charges case, cases of this in and similar must this quasi-factual upon turns, rather, determina- be dismissed invariably irreparably preju- and denial tion that such person’s indicated, As defense. it is with accused dices the disagree. opinion I phase the this of geographic today Traditionally, areas of the in those readily are not avail- tests or chemical world where blood type in intoxication this of able, of the issue determination testimony persons of who about the of a has revolved case observed, or smelt the heard, ac- or have have dealt with type This of evidence, time of arrest. the or before cused at scientifically pure while test, not as as a blood or chemical predicated upon experience is nevertheless the common of mankind and his the association with and observation of light, effect of alcohol. this it has been considered years judges juries evaluated over the alike and given appropriate weight guilt its in or a determination of Parenthetically, might innocence. it well observed testimony, accompanied appropriate such instances with opinions long witnesses, been conclusions of has acquit charged persons utilized to convict or with far more driving. public serious offenses intoxication or drunken than testimony Frequently, prosecution’s eyewitness’ too, the (made by support in beer” an ac- finds “two admissions advised of his con- cused before could be rights), presence or at the scene of stitutional crapu- physical of of relevant to issue arrest evidence find the hand, it is not novel to accused’s lence. On other testimony supported by friends, of version events bystanders acquaintаnces, occasion to observe or who had prior charts, medical dental records arrest, or or him alleged testimony bearing upon the debilitation. accused’s for the detection alcohol of scientific tests advent by no means invalidated human stream has blood proof. these traditional modes or rendered worthless every failure to accord me, it should Neither, does seem to speculative opportunity to of intoxication a one accused all other evidence test eradicate a blood-alcohol obtain Society, impotent. render law enforcement intoxication process of law. to due individual, is entitled as well as Particularly one considers to be so when seem year 47,700 were 1964 there some the fact that accidents, automobile attributable to in the nation deaths many fatal drinking as half of the occ a factor with urrences.6 investigating the observations case,
In the instant coupled the de- accident, scene officers at to warrant admission, were sufficient “three beer” fendant’s Council, pp. 40, Safety (1965 ed.), 52. National 6Accident Facts *28 physical defendant’s arrest. The tests ad- co-ordination police ministered with defendant’s consent at station defendant, confirmed the officers’ evaluation. When proclaiming sobriety acting upon his the advice of his attorney, Harger proffered sobriety refused to take the only deprived test, he not himself of scientific evidence provide, compelled police such a test would but he also rely upon possession then in evidence their de- termining charges. prefer Denial defendant’s whether attorney to further communicate with his under such circumstances, improper, destroy while did not eliminate or validity officers’observations at scene of the physical accident or the results of the co-ordination tests. n deprive opportunity Neither did it defendant of gathering presenting testimony persons who had fa) during (b) during day, him observed the course of the sojourn prior his in the different taverns to the accident, (c) during presence his at the scene of the accident. precluded corroborating Likewise, defendant was not testimony complaint medical his of ulcers and the effect coherency, equi- of alcohol thereon as same related to driving capacity. librium, or gather any
Defendant, however, did not such corrobora- present- Instead, tive evidence. he contented himself with ing testimony standing upon his own uncorroborated predicated, upon specu- his is, motion to it dismiss, attorney prospect have, lative that his could between the p.m. laboratory doctor, hours of 11:30 and a.m. induced a hospital technician, or a attendant to come to the procure sample analysis, station and a blood and that analysis, significantly made, such if would have been more revealing rejected Harger sobriety than the test. situation, court, the trial
Confronted after ob- testify serving hearing the defendant as to the events surrounding requests, arrest, incarceration, in sub- time defendant, stance found that the at the of the accident upon in fact station, his arrival at intoxi- practical, question realistic, cated, and substantial availability of a existed as the blood-alcohol test at the time prevailing, and under the and that his deten- circumstances *29 attorney permission tion without to communicate with his prejudice period irreparably not for the of time involved did his defense. the trial court
A the record satisfies me that review of gave impartial full, defend- fair, and consideration com- the denial of contentions, and that ant’s evidence present does under here munication the circumstances Balancing charges. justify compel a dismissal of the rights of law the defendant of due between society, to me that the denial communication it seems remedy greater a warrant at most no here involved would suppression accumulated evidence than however, ask this. not, Defendant did station. at accordingly judgment. affirm the I would Finley J. Ott, JJ., Hamilton, concur with January Department 13, 1966.] Two. 37163.
[No. Respondent, Reano et Washington, v. John The State Appellants.* Respondents, al., et al., Charles Waller *Reported 853. in 409 P.2d