108 Wash. App. 490 | Wash. Ct. App. | 2001
In three unrelated cases, the question is whether a preprinted rights form adequately advised the defendant, pursuant to CrR 3.1 or CrRLJ 3.1, of his or her right to counsel “as soon as feasible” after arrest. The answer is no, but the defect did no harm in these particular cases. Accordingly, we decline to suppress the resulting evidence.
Since 1987, District and Municipal Criminal Rule (CrRLJ) 3.1 has provided that “[t]he right to a lawyer shall
In most cases, these rules are implemented by the arresting officer reading from a preprinted form. Before the dates in issue here, the form stated that “[y]ou have the right at this time to an attorney of your own choosing and to have him or her present before or during questioning”; and further, that “[i]f you cannot afford an attorney you are entitled to have one appointed for you by the court without cost to you and to have him or her present before or during questioning!)]”
The dispositive issue on appeal is whether the revised form complied with CrR 3.1 and CrRLJ 3.1. CrR 3.1 and CrRLJ 3.1 provide that £<[t]he right to a lawyer shall accrue as soon as feasible after the defendant is taken into custody!.]”
The court rule . . . goes beyond the requirements of the constitution. Miranda rights need be given only if a suspect who is in custody is going to be interrogated. The Sixth Amendment right to counsel attaches only if judicial proceedings have been initiated. Under [CrRLJ 3.1’s predecessor], however, the defendant must be advised of his right to counsel immediately when he has been taken into custody.[13 ]
Nothing we have said precludes an advice of rights form designed to comply with Miranda
Properly worded Miranda warnings may be sufficient to advise a person of the rule-based right to counsel even if the warnings do not mirror the language of the rule. If the warnings given here had adequately conveyed to Respondents their right to consult counsel before the breath test, then the warnings would have satisfied the rule. Unfortunately, they did not.[16 ]
In this case, as in Templeton, the wording of the revised form did not satisfy CrR 3.1 or CrRLJ 3.1.
Although the revised form was defective, the defect did no harm in any of these three cases. Each officer advised each defendant that he or she had the right to counsel before and during any questioning. Over the next several minutes, each officer then questioned the defendant in order to fill out a DUI arrest report and Breathalyzer
We need not reach the remaining issues. We reverse the order granting suppression in State v. Roesch. We affirm the orders denying suppression in State v. Dunn and State v. Wright. We remand each case to the district or municipal court in which it was initially filed.
Armstrong, C.J., and Hunt, J., concur.
Review granted at 145 Wn.2d 1015 (2002).
CrRLJ 3.1(b)(1); see CrRLJ 3.1(b)(1), 108 Wn.2d at 1164-65 (1987).
CrRLJ 3.1(c)(1); see CrRLJ 3.1(c)(1), 108 Wn.2d at 1165.
CrR 3.1(b)(1), (c)(1); see CrR 3.1(b)(1), (c)(1), 82 Wn.2d at 1120-21 (1973).
City of Spokane v. Kruger, 116 Wn.2d 135, 147, 803 P.2d 305 (1991); City of Seattle v. Sandholm, 65 Wn. App. 747, 751-52, 829 P.2d 1133 (1992).
No one formally included the previous form in the record, but it appears in the case law and the parties’ briefs in apparently reliable fashion. See, e.g., State v. Teller, 72 Wn. App. 49, 51, 863 P.2d 590 (1993), review denied, 123 Wn.2d 1029 (1994); Clerk’s Papers (CP) (Wright) at 4 (Wright’s Super. Ct. Appellate Br.); Reply Br. of City of Tacoma at 1; CP (Roesch) at 13 (Roesch’s Super. Ct. Appellate Br.); CP (Roesch) at 34 (City of Tacoma’s Super. Ct. Appellate Br.); CP (Wright) at 72 (Wright’s Mem. in Support of Mot. to Suppress).
CP (Roesch) at 21; CP (Wright) at 10; State’s Suppl. Br. to Dunn’s Mot. to Suppress, Ex. 1.
CP (Roesch) at 21; CP (Wright) at 10; State’s Suppl. Resp. to Dunn’s Mot. to Suppress, Ex. 1.
CP (Wright) at 12.
CP (Roesch) at 44-45 (State v. Roesch, No. 41991 (Tacoma Mun. Ct. Oct. 28, 1998) (motion denied)); CP (Roesch) at 51-52 (State v. Roesch, No. 98-1-05546-6 (Pierce County Super. Ct. Sept. 17, 1999) (reversed on RALJ appeal; motion granted)).
CP (Dunn) at 4-5 (State v. Dunn, No. 980186685 (Pierce County Dist. Ct. Oct. 30,1998)); RP (Wright) (Jan. 26,1999) at 10 (State v. Wright, No. 98801368 (Pierce County Dist. Ct. Jan. 26, 1999)).
CrR 3.1(b)(1); CrRLJ 3.1(b)(1) (“The right to a lawyer shall accrue as soon as feasible after the defendant has been arrested.”).
See State v. Trevino, 127 Wn.2d 735, 743, 903 P.2d 447 (1995) (citing State ex rel. Juckett v. Evergreen Dist. Court, 100 Wn.2d 824, 831, 675 P.2d 599 (1984));
Heinemann v. Whitman County, 105 Wn.2d 796, 802, 718 P.2d 789 (1986).
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
See Juckett, 100 Wn.2d at 831; Teller, 72 Wn. App. at 54-55.
State v. Templeton, 107 Wn. App. 141, 150, 27 P.3d 322 (2001) (emphasis added) (footnote omitted).
When analyzing whether an ordinary citizen was “questioned,” and thus understood that he had a right to counsel at that time, we do not distinguish between questions asked to fill out the arrest report and questions asked to fill out the Breathalyzer consent form. An ordinary citizen would have perceived that he or she was being “questioned” regardless of what form was being filled out.
CrR 3.1(b)(1); CrRLJ 3.1(b)(1).
State v. Templeton may or may not be distinguishable on this point. By saying that “[t]he State relies upon three cases that we find are either not helpful, or support suppression!,]” Templeton implies that the State did not present a carefully crafted argument. Templeton, 107 Wn. App. at 151. If that is true, Templeton and this case are distinguishable because the State’s argument here is adequate. Even if it is not true, however, we choose to digress from Templeton on this point. We find Templeton persuasive on most points, but not on this one.