State v. TempletonState v. Templeton
In consolidated cases Petitioner Washington State seeks review of a decision of the
In State v. Templeton the Court of Appeals, Division One, affirmed a decision of the King County Superior Court which suppressed the results of defendants’ BAC breath tests because the State did not properly advise them of their right to counsel under
In State v. Dunn the Court of Appeals, Division Two, upheld a decision of the Pierce County Superior Court which denied the motions of Petitioners Dunn and Wright to suppress the results of their BAC breath tests, but reversed suppression in the case of Petitioner Roesch. Despite its conclusion that the State‘s advisement of the right to counsel was defective under
QUESTIONS PRESENTED
The questions presented in these cases are (1) whether promulgation of
STATEMENT OF FACTS
State v. Templeton
The cases of State v. Templeton, State v. Marginean, State v. Marsh, and State v. Post came before the Court of Appeals, Division One, as consolidated cases on appeal.7
On three separate occasions, Washington State Patrol troopers stopped and arrested for DUI Respondent John D. Templeton on April 19, 1998, Respondent Benjamin Marginean on February 2, 1998, and Richard Post on April 22, 1998.8 Respondent James P. Marsh was stopped and arrested by a Washington State Patrol trooper for driving a motor vehicle while under the influence of intoxicating liquor and/or drugs under the age of 21 years on May 16, 1998.9 The arresting officers advised Respondents of their constitutional rights upon arrest as required under Miranda v. Arizona.10 After
1. YOU HAVE THE RIGHT TO REMAIN SILENT.
2. ANYTHING YOU SAY CAN AND WILL BE USED AGAINST YOU IN A COURT OF LAW.
3. IF YOU ARE UNDER THE AGE OF 18, ANYTHING YOU SAY CAN BE USED AGAINST YOU IN A JUVENILE COURT PROSECUTION FOR A JUVENILE OFFENSE AND CAN ALSO BE USED AGAINST YOU IN AN ADULT COURT CRIMINAL PROSECUTION IF THE JUVENILE COURT DECIDES THAT YOU ARE TO BE TRIED AS AN ADULT.
4. YOU HAVE THE RIGHT TO TALK TO AN ATTORNEY BEFORE ANSWERING ANY QUESTIONS.
5. YOU HAVE THE RIGHT TO HAVE AN ATTORNEY PRESENT DURING QUESTIONING.
6. IF YOU CANNOT AFFORD AN ATTORNEY, ONE WILL BE APPOINTED TO YOU WITHOUT COST, BEFORE OR DURING QUESTIONING, IF YOU SO DESIRE.
7. DO YOU UNDERSTAND THESE RIGHTS?
Respondents signed the form acknowledging that they understood their rights and did not wish to exercise them at that time.13 They also signed the implied consent warning form and submitted to the breath test.14 Prior to the breath test, the officers asked and Respondents answered a series of preliminary questions.15 Following questioning, the officers administered the BAC breath test to Respondents which in each instance indicated an alcohol concentration over the then legal limit of 0.10.16
Respondents Templeton, Marginean and Post were formally charged in the King County District Court with driving while under the influence.17 Respondent Marsh, being under the age of 21 years, was charged with minor driving after consuming alcohol.18
On September 3, 1998 the King County Northeast District Court, the Honorable David A. Steiner, granted the motions of Respondents Templeton and Marginean, ordering suppression of only the breath test in the Templeton case and ordering suppression of all the evidence after arrest in the Marginean case because the State did not comply with
On May 29, 1998 the King County Northeast District Court, the Honorable Peter L. Nault, granted the motion of Respondent Marsh to suppress all evidence obtained subsequent to the advisement of rights given him after his arrest.22 The State appealed those decisions to the King County Superior Court.23 On September 13, 1999 the Superior Court, Judge Nicole MacInnes, affirmed the District Court‘s order suppressing the results of the BAC breath test, but reversed the suppression of statements made by Respondents.24
On January 11, 1999 the King County Seattle District Court, the Honorable Barbara L. Linde, denied Respondent Post‘s motion, finding the State‘s advisement of rights complied with
The State appealed each decision to the Court of Appeals, Division One. The court consolidated the cases and designated the matter as State of Washington v. John D. Templeton, Benjamin Marginean, James Marsh and Richard Post. Upon review, the Court of Appeals, the Honorable Anne L. Ellington writing, concluded the Supreme Court did not exceed its rule-making authority in adopting
State v. Dunn; State v. Wright; City of Tacoma v. Roesch
During traffic stops on December 21, 1997 Petitioner Mark D. Dunn was arrested by a Washington State Patrol trooper; on April 30, 1998 Petitioner Michael L. Roesch was arrested by a Tacoma Police officer; and on October 23, 1998 Petitioner Sygrid D. Wright was arrested by a Pierce County Deputy Sheriff for suspicion of driving while under the influence.31 Upon arrival at police stations, petitioners were read their constitutional
Prior to trial in each case, Petitioners moved to suppress the alcohol breath test results on grounds that the advisement of rights on the WSP DUI Arrest Report form did not comply with the requirements of
Petitioners in each case appealed to the Pierce County Superior Court. On June 11, 1999, the Honorable Arthur W. Verharen affirmed the rulings of the District Court.42 On October 1, 1999, the Honorable Frederick W. Fleming upheld the District Court‘s order which ruled that the advisement of right to counsel given to Petitioner Wright satisfied
The State appealed to the Court of Appeals, Division Two.45 Upon review, the Court of Appeals, the Honorable J. Dean Morgan writing, held that although the WSP DUI Arrest Report form advising defendants of their right to counsel did not satisfy the requirements of
By order dated January 8, 2002 this court granted the State‘s petitions for review and
DISCUSSION
CONSTITUTIONAL RIGHT TO COUNSEL
The right to counsel is constitutionally compelled by the
The
The United States Supreme Court in Miranda v. Arizona fashioned a practical rule to ensure the integrity of the privilege against self-incrimination under the
procedural safeguards ... the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.54
A suspect‘s
A “custodial interrogation” which requires law enforcement officers to administer Miranda warnings to a suspect is defined as questioning initiated by the officers after a person is taken into custody.56 Generally, in defining custody the Supreme Court has looked at the circumstances surrounding the interrogation and whether a reasonable person would have felt that person was not at liberty to terminate interrogation and leave.57 Under federal and state case law, the right to counsel is a procedural safeguard ancillary to the
The
In discussing the right to counsel in the context of a DUI prosecution, this court in City of Tacoma v. Heater observed that the right to counsel attaches at any “critical stage” in a criminal proceeding.62 Because of the transitory nature of the evidence of intoxication,63 a “critical stage” is reached immediately after arrest and charging for DUI. This court in Heater declared invalid a police requirement of a four-hour delay before allowing a person arrested for DUI to have the assistance of counsel.64 The United States Supreme Court in Kirby v. Illinois subsequently stated that the right to counsel under the
Criminal Rule for Courts of Limited Jurisdiction (CrRLJ) 3.1
Reflecting upon the concern raised in Heater over the need for counsel based on its
CrRLJ 3.1 reads in pertinent part:
(a) Types of Proceedings. The right to a lawyer shall extend to all criminal proceedings for offenses punishable by loss of liberty regardless of their denomination as felonies, misdemeanors, or otherwise.
(b) Stage of Proceedings.
(1) The right to a lawyer shall accrue as soon as feasible after the defendant has been arrested, appears before a committing magistrate, or is formally charged, whichever occurs earliest.
(2) A lawyer shall be provided at every critical stage of the proceedings.
(c) Explaining the Availability of a Lawyer.
(1) When a person has been arrested he or she shall as soon as practicable be advised of the right to a lawyer. Such advice shall be made in words easily understood, and it shall be stated expressly that a person who is unable to pay a lawyer is entitled to have one provided without charge.
(2) At the earliest opportunity a person in custody who desires a lawyer shall be provided access to a telephone, the telephone
Under this rule a defendant in every criminal case must be advised of the right to a lawyer (attorney or counsel) “as soon as practicable” after arrest. The Washington State Bar Association Task Force comment to the rule and this court have defined the phrase “as soon as practicable” to mean “immediately.”71 According to Templeton Petitioners and Dunn Respondents, inasmuch as a defendant must be immediately advised of the right to counsel, that right cannot be qualified and must be expressed without limitation in words “easily understood.”72 If not, they argue, the right is deprived of its substance and a suspect‘s right to counsel under
This court has observed that former
We have previously recognized that the right to counsel under
RULE-MAKING POWER
The State challenges
We have previously been asked to determine whether a court rule was a procedural matter within the power of the court or a substantive matter solely within the function of the Legislature.83 In recognizing that “a clear line of demarcation cannot always be delineated between what is substantive and what is procedural”84 and that there is “`some mingling and overlapping of powers between the three separate departments of our government,\‘”85 this court follows general guidelines in analyzing the issue. That framework differentiates between substantive and procedural matters:
Substantive law prescribes norms for societal conduct and punishments for violations thereof. It thus creates, defines, and regulates primary rights. In contrast, practice and procedure pertain to the essentially mechanical operations of the courts by which substantive law, rights, and remedies are effectuated.86
In response to the State‘s argument that promulgation of the rule is beyond the authority of this court, Templeton Petitioners and Dunn Respondents maintain that a court rule need not be constitutionally or statutorily grounded as long as there is a nexus between the rule and the court‘s procedural powers or responsibilities.87 The Court of Appeals in Templeton agreed.88 In support of this proposition those Petitioners and Respondents cite State v. Smith and State v. Fields.89
Smith involved a challenge to a court rule which authorized bail in all cases, including capital cases, while our state constitution, article I, section 20, and a statute authorized bail for criminal actions except certain capital cases.90 Similar to the argument in this case, the State argued that the rule created a substantive right outside the court‘s rule-making powers. Notwithstanding those inconsistencies, we upheld the rule, reasoning that the right to fix bail is related to the court‘s responsibility to ensure that the alleged offense is adjudicated, a matter which is essentially procedural in nature.91
Using the framework established in Smith, this court in Fields addressed the issue whether the Supreme Court in the exercise of its rule-making authority may expand the grounds for issuance of a search warrant beyond those legislatively authorized.92 The court noted several grounds justifying the rule. Search warrants come within the ambit of
To distinguish Smith and Fields, the State maintains that the court rules in those cases
To support its contention, the State cites a Michigan Court of Appeals decision, People v. Reichenbach, which invalidated a court rule that prohibited use of a prior conviction to enhance a subsequent conviction unless the defendant had been represented by counsel or waived that right.96 At the time it was promulgated, the rule represented a summary of existing case law with the United States Supreme Court decision in Baldasar v. Illinois97 as the cornerstone; however, in a subsequent case, Nichols v. United States,98 the Supreme Court overruled Baldasar. As a result, the Michigan Court of Appeals held the rule invalid on the grounds that it no longer related to any practice or procedure supported by case law.99 On review, however, in affirming the decision on other grounds, the Michigan Supreme Court did not reach the question of whether the right to counsel compelled by the court rule exceeded the court‘s rule-making authority or violated the doctrine of separation of powers.100 Instead, it simply held that the rule did not apply to the defendant‘s case.101 The State‘s citation of Reichenbach has no logical application to these cases. Even if we were to follow the rationale of an intermediate appellate court from another state,
City of Tacoma v. Heater and the line of cases following have not been overruled.103 In State v. Fitzsimmons (Fitzsimmons I) we reaffirmed the rule announced in Heater.104 Defendant Fitzsimmons was arrested and charged with DUI. While in custody, he asked to speak with an attorney, but the arresting officer told him he would have to wait until the time of pretrial or arraignment. The defendant then refused to take the “Breathalyzer” test. This denial of right to counsel, the court ruled, was a violation of both the
This court in Juckett upheld Fitzsimmons I, observing that the right to counsel established under the court rule affords a suspect the right to consult an attorney prior to submitting to a “Breathalyzer” test.108 In Heinemann v. Whitman County, this court, in holding that former
Under Smith and Fields the validity of a court rule need not stand solely on either constitutional or statutory grounds. A nexus between the rule and the court‘s rule-making authority over procedural matters validates the court rule, despite possible discrepancies between the rule and legislation or the constitution.110 Although this case is dissimilar to Smith in the fact that neither statute nor constitutional provision directly contravene the court rule, it is consistent with our previous rulings that we follow our decisions in Smith and Fields.
As we indicated in Fitzsimmons II, the right to counsel under former
The Court of Appeals in Templeton identifies the two purposes of
SUFFICIENCY OF ADVISEMENT OF RIGHTS
We next consider whether the advisement WSP DUI Arrest Report form satisfied
As we have noted, the court rule, which we construe to provide a right to counsel immediately upon arrest, goes beyond the constitutional requirements of the
The State contends that the giving of Miranda rights satisfied
In Templeton the Court of Appeals, Division One, acknowledges that “[p]roperly 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.”122 Division One concluded, “Unfortunately, they did not.”123
In Dunn, the Court of Appeals, Division Two, agreed that the warnings did not satisfy the rule. “The revised form stated that the right to a lawyer accrues when the defendant is questioned. A defendant can be in custody, yet not be questioned. Clearly then, the revised form did not satisfy the rules.”124
Where Divisions One and Two part company on this issue is in determining whether the failure to satisfy the rule prejudiced these defendants.
HARMLESS ERROR ANALYSIS
Having concluded that the error in this case resulted from violation of a court rule, rather than a constitutional infirmity, the stringent “`harmless error beyond a reasonable doubt\‘” standard does not apply.125 Instead, we apply the rule “[a]n error is prejudicial if, `within reasonable probabilities, [if] the error [had] not occurred, the outcome of the trial would have been materially affected.\‘”126
Applying that standard, under the circumstances of these consolidated cases,
“Exclusion or suppression of evidence is an extraordinary remedy and should be applied narrowly.”129 In ruling on suppression a court should consider: (1) the effectiveness of the less severe sanctions; (2) the impact of suppression on the evidence at trial and the outcome; (3) the extent to which the objecting party will be surprised or prejudiced by the evidence; and (4) whether the violation was willful or in bad faith.130 Suppression is a harsh remedy to be used sparingly only where justice so requires and not where error is harmless.
Defendants urge that DUI prosecutions present a unique situation because of the transitory nature of the evidence of intoxication. However, this claim is not unique to DUI prosecutions. DNA evidence from perspiration, saliva, blood, and other bodily fluids is common perishable evidence in rape and murder cases just as is blood alcohol evidence. In addition, blood alcohol tests for alcohol and drug evidence may be claimed to be important elements of a diminished capacity defense in any criminal case.
Because the officers advised each defendant of the right to counsel before questioning and then proceeded to question each defendant, who waived the right to counsel, there was no harm. Had the officers merely administered the breath test, without going through the advisement of rights in connection with the breath test, suppression might be justified. However, under these facts, the error in the advisement of rights was harmless; therefore suppression is unwarranted.
SUMMARY AND CONCLUSIONS
The State‘s challenge to the rule-making authority of the Supreme Court is without merit because there is a nexus between
The harsh and extraordinary remedy of suppression is unwarranted in these cases, even where the requirement of
SMITH, J., dissents and files an opinion, joined by JOHNSON, SANDERS and CHAMBERS, JJ.
SMITH, J., dissenting.
I respectfully disagree with the conclusion reached by the majority. Reaching the opposite conclusion, I would affirm the Court of Appeals, Division One, in State v. Templeton, 107 Wash.App. 141, 27 P.3d 222 (2001) and reverse the Court of Appeals, Division Two, in State v. Dunn, 108 Wash.App. 490, 28 P.3d 789 (2001).
The State challenges Criminal Rule for Courts of Limited Jurisdiction (CrRLJ) 3.1, questioning whether the rule is a proper exercise of this court‘s rule-making authority. The State contends that because the right to counsel under
Under State v. Smith, 84 Wash.2d 498, 527 P.2d 674 (1974), and State v. Fields, 85 Wash.2d 126, 530 P.2d 284 (1975), the validity of a court rule need not stand solely on either constitutional or statutory grounds. A nexus between the rule and the court‘s rule-making authority over procedural matters validates the court rule, despite possible discrepancies between the rule and legislation or the constitution. Although this case is dissimilar to Smith in the fact that no statute or constitutional provision directly contravenes the court rule, a determination that the rule is valid is consistent with this court‘s previous rulings which follow our decisions in Smith and Fields.
The right to counsel established by court rule is a procedural matter under this court‘s rule-making authority. The right to counsel under
I believe the error in not following the requirements of
Templeton Respondents and Dunn Petitioners had a statutory right to submit or not to submit to the blood alcohol (BAC) breath tests. If their right had not been improperly qualified under the Washington State Patrol DUI Arrest Report form, they would have known they were entitled to consult an attorney before administration of the breath alcohol test so that their attorneys could advise them of the best course of action whether to take or refuse to take the breath alcohol test. When the right to counsel of Templeton Respondents and Dunn Petitioners was improperly limited by the officers, they were prejudiced by deprivation of possible helpful advice from their attorneys. Violation of
I would therefore affirm the Court of Appeals, Division One, in State v. Templeton, which held promulgation of
Notes
WARNING! YOU ARE UNDER ARREST FOR:
Driving or being in actual physical control of a motor vehicle while under the influence of intoxicating liquor.
Being under 21 years of age and driving or being in actual control of a motor vehicle after consuming alcohol.
Driving a commercial motor vehicle while having alcohol in your system.
Other __________
FURTHER, YOU ARE NOW BEING ASKED TO SUBMIT TO A TEST OF YOUR BREATH WHICH CONSISTS OF TWO SEPARATE SAMPLES OF YOUR BREATH, TAKEN INDEPENDENTLY, TO DETERMINE ALCOHOL CONCENTRATION. YOU ARE NOW ADVISED THAT YOU HAVE THE RIGHT TO REFUSE THIS BREATH TEST; THAT IF YOU REFUSE, YOUR LICENSE, PERMIT, OR PRIVILEGE TO DRIVE WILL BE REVOKED OR DENIED BY THE DEPARTMENT OF LICENSING; AND THAT YOU HAVE THE RIGHT TO ADDITIONAL TESTS ADMINISTERED BY A QUALIFIED PERSON OF YOUR OWN CHOOSING AND THAT YOUR REFUSAL TO TAKE THE TEST MAY BE USED IN A CRIMINAL TRIAL; AND
YOU ARE FURTHER ADVISED THAT YOUR LICENSE, PERMIT, OR PRIVILEGE TO DRIVE WILL BE SUSPENDED, REVOKED, DENIED, OR PLACED IN PROBATIONARY STATUS IF THE TEST IS ADMINISTERED AND THE TEST INDICATES THE ALCOHOL CONCENTRATION OF YOUR BREATH IS 0.10 OR MORE, IF YOU ARE AGE 21 OR OVER, OR 0.02 OR MORE IF YOU ARE UNDER AGE 21.
. . . .
In State v. Bostrom, 127 Wash.2d 580, 902 P.2d 157 (1995) this court upheld the constitutionality of the warnings given pursuant to
(1) Any person who operates a motor vehicle within this state is deemed to have given consent, subject to the provisions of