148 Wash. 2d 193 | Wash. | 2002
Lead Opinion
In consolidated cases, Petitioner Washington State seeks review of a decision of the Court of Appeals, Division One,
In State v. Templeton,
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 CrRLJ 3.1, the court concluded the error was harmless and that therefore the results of the BAC breath test were admissible.
QUESTIONS PRESENTED
The questions presented in these cases are (1) whether promulgation of CrRLJ 3.1 exceeded this court’s rule-making authority, and (2) whether the State’s violation of CrRLJ 3.1 requires suppression of the results of a defendant’s BAC breath test.
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.
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.
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.
Respondents Templeton, Marginean and Post were for
On September 3, 1998, the King County District Court, Northeast Division, 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 CrRLJ 3.1.
On May 29, 1998, the King County District Court, Northeast Division, 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.
On January 11, 1999, the King County District Court, Seattle Division, the Honorable Barbara L. Linde, denied Respondent Post’s motion, finding the State’s advisement of rights complied with CrRLJ 3.1.
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 CrRLJ 3.1 requiring advisement of the right to counsel before administration of the alcohol breath test, and that the officers’ warnings did not comply with CrRLJ 3.1, which constituted prejudicial error requiring suppression of the breath test results.
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.
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 CrRLJ 3.1.
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.
The State appealed to the Court of Appeals, Division Two.
By order dated January 8, 2002, this court granted the State’s petitions for review and consolidated the Templeton cases and the Dunn cases.
DISCUSSION
Constitutional Right to Counsel
The right to counsel is constitutionally compelled by the Fifth Amendment and Sixth Amendment of the United States Constitution.
The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.”
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 Fifth Amendment, stating that as
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.[55 ]
A suspect’s Fifth Amendment privilege against self-incrimination and the corresponding right to be informed attaches when “custodial interrogation” begins.
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.
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall... have the assistance of
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.
Reflecting upon the concern raised in Heater over the need for counsel based on its Sixth Amendment analysis of “critical stage” demand, Dunn Petitioners
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 number of the public defender or official responsible for assign*211 ing a lawyer, and any other means necessary to place him or her in communication with a lawyer.[71 ]
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.”
This court has observed that former JCrR 2.11, which was replaced by CrRLJ 3.1, “goes beyond the requirements of the Constitution.”
We have previously recognized that the right to counsel under CrRLJ 3.1 is essential to the effective preparation of defense against the charge of DUI.
Rule-Making Power
The State challenges CrRLJ 3.1, questioning whether the rule is a proper exercise of this court’s rule-making authority.
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.
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[87 ]
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.
Smith involved a challenge to a court rule that authorized bail in all cases, including capital cases, while our
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.
To distinguish Smith and Fields, the State maintains that the court rules in those cases involved functions related to the mechanics of court business,
To support its contention, the State cites a Michigan
State v. Heater and the line of cases following have not been overruled.
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.
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.
As we indicated in Fitzsimmons II, the right to counsel under former JCrR 2.11 (now CrRLJ 3.1) comes within the ambit of RCW 2.04.190 and the court’s inherent power to prescribe procedural court rules.
The Court of Appeals in Templeton identifies the two purposes of CrRLJ 3.1.
Sufficiency of Advisement of Rights
We next consider whether the advisement WSP DUI Arrest Report form satisfied CrRLJ 3.1(b)(1) which provides that “[t]he right to a lawyer shall accrue as soon as feasible after the defendant has been arrested.” The advisement form employed by law enforcement prior to the dates of arrest in these cases (previous 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.’ ”
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 fifth and sixth amendments to the United States Constitution. As set forth yd. Miranda v. Arizona,
The State contends that the giving of Miranda rights satisfied CrRLJ 3.1, relying on Juckett and State v. Teller.
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.”
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
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.
Applying that standard, under the circumstances of these consolidated cases, there was no harm to the defendants by the use of the revised form, which failed to comply with the court rule. That is because in each case, each officer advised each defendant of the right to counsel before and during any questioning. As stated by Judge Morgan, “[t]he combined effect was to inform each defendant that he or she had a right to counsel right now—in other words, ‘as soon as feasible after [being] taken into custody!.]’ ”
“Exclusion or suppression of evidence is an extraordinary remedy and should be applied narrowly.”
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
The harsh and extraordinary remedy of suppression is unwarranted in these cases, even where the requirement of CrRLJ 3.1 that counsel be provided “as soon as feasible” has not been followed, because "under the circumstances the breath evidence was not tainted. Each defendant understood that he or she had a right to counsel before the administration of the breath test. None of the defendants alleged that but for the improper form, he or she would have requested counsel before answering questions or submitting to the breath test. We affirm the Court of Appeals, Division Two, in State v. Dunn, which held that inadequate CrRLJ 3.1 warnings given to the defendants by the officer was harmless error not requiring suppression of the BAC Verifier DataMaster test results. We reverse the Court of Appeals, Division One, in State v. Templeton, which suppressed the breath test results.
Alexander, C.J., and Madsen, Bridge, and Owens, JJ., concur.
State v. Templeton, 107 Wn. App. 141, 27 P.3d 222 (2001).
State v. Dunn, 108 Wn. App. 490, 28 P.3d 789 (2001).
The BAC Verifier DataMaster machine was used to test breath samples of all Templeton Respondents and Dunn Petitioners. The machine was first approved by this court in State v. Ford, 110 Wn.2d 827, 755 P.2d 806 (1988), and subsequently in State v. Straka, 116 Wn.2d 859, 810 P.2d 888 (1991) and in State v. Wittenbarger, 124 Wn.2d 467, 880 P.2d 517 (1994).
State v. Templeton, 107 Wn. App. 141, 27 P.3d 222 (2001).
Templeton, 107 Wn. App. 150-52.
State v. Dunn, 108 Wn. App. 490, 493-95, 28 P.3d 789 (2001).
CrR 3.1 for Superior Courts is identical in language and likewise is implicated by this decision.
Consolidated cases titled State of Washington v. John D. Templeton, Benjamin Marginean, James Marsh and Richard Post, Nos. 45384-0-1,45386-6-1, 45387-4-1, 45969-4-1 (107 Wn. App. 141).
Clerk’s Papers (CP) (Templeton) at 50; CP (Marginean) at 46; CP (Post) at 101A.
CP (Marsh) at 88.
384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). See CP (Templeton) at 73; CP (Marginean) at 27; CP (Marsh) at 93; CP (Post) at 70.
Qp (Templeton) at 27; CP (Marginean) at 50; CP (Marsh) at 90; CP (Post) at 103.
Id.
Id.
The implied consent warning form read:
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 15 0.10 OR MORE, IF YOU ARE AGE 21 OR OVER, OR 0.02 OR MORE IF YOU ARE UNDERAGE 21.
In State v. Bostrom, 127 Wn.2d 580, 902 P.2d 157 (1995), this court upheld the constitutionality of the warnings given pursuant to RCW 46.20.308 and held that they did not deprive drivers of an opportunity to make knowing and intelligent decisions whether to take a BAC test. RCW 46.20.308 reads in part:
(1) Any person who operates a motor vehicle within this state is deemed to have given consent, subject to the provisions of RCW 46.61.506, to a test or tests of his or her breath or blood for the purpose of determining the alcohol concentration or presence of any drug in his or her breath or blood if arrested ....
Br. of Templeton at 2-9.
CP (Templeton) at 50; CP (Marginean) at 49; CP (Marsh) at 94; CP (Post) at 69. Templeton Respondents were charged under former RCW 46.61,502 (1994) and 46.61.506 (1995). The statutes were subsequently amended to reflect a blood alcohol concentration limit of 0.08 instead of 0.10.
CP (Templeton) at 50; CP (Marginean) at 70; CP (Post) at 69. See RCW 46.61.502, .506. The actual charge was “driving while under the influence of or affected by intoxicating liquor or any drug.”
CP (Marsh) at 51. RCW 46.61.503(1) (driver under 21 consuming alcohol) provides that a person driving or being in physical control of a motor vehicle is guilty after consuming alcohol if the person operates or is in physical control of a motor vehicle within the state and the person “(a) Is under the age of twenty-one; (b) Has, within two hours after operating or being in physical control of the motor vehicle, an alcohol concentration of at least 0.02 but less than the concentration specified in RCW 46.61.502 [.08], as shown by analysis of the person’s breath or blood made under RCW 46.61.506.”
Qp (Templeton) at 52; CP (Marginean) at 72-87; CP (Marsh) at 53-56; Br. of Templeton at 4.
CP (Templeton) at 17-27; CP (Marginean) at 32-34; CP (Marsh) at 22; CP (Post) at 30-39.
CP (Templeton) at 73-7; CP (Marginean) at 27-30.
CP (Marsh) at 95-100.
CP (Templeton) at 58-76; CP (Marginean) at 88-104; CP (Marsh) at 63-77.
Qp (Templeton) at 97-8; CP (Marginean) at 179-80; CP (Marsh) at 141-42.
CP (Post) at 5; Br. of Templeton at 4.
CP (Post) at 1, 16.
Id. at 5.
Br. of Templeton at 4.
Templeton, 107 Wn. App. at 150-53.
Order Granting Pet. for Review, 145 Wn.2d 1015, 41 P.3d 484 (2002).
Br. of Dunn at App. A; CP (Wright) at 93; CP (Roesch) at 21.
See Br. of Dunn at App. A; CP (Wright) at 10; CP (Roesch) at 21.
Id.
Id.
See Br. of Dunn and Wright at 2; CP (Wright) at 51.
CP (Roesch) at 26.
See Br. of Dunn and Wright at 2, 4; CP (Roesch) at 2.
See Br. of Dunn at App. B.
Transcribed Audio Taped Report of Proceedings at 10.
CP (Roesch) at 26.
Br. of Dunn at 2; Br. of Wright at 2; CP (Roesch) at 30.
CP (Dunn) at 4-5.
CP (Wright) at 97-100.
CP (Roesch) at 51-5.
Pet. for Review (Dunn) at 1.
Dunn, 108 Wn. App. at 493-95.
Order Granting Pet. for Review, 145 Wn.2d 1015 (2002). State v. Templeton, No. 71502-5, was consolidated with State v. Dunn, No. 71529-7.
See Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972); Miranda, 384 U.S. 436.
Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964); City of Tacoma v. Heater, 67 Wn.2d 733, 735, 409 P.2d 867 (1966).
U.S. Const. amend. V.
Miranda, 384 U.S. at 439.
“No person shall be compelled in any criminal case to give evidence against himself, or be twice put in jeopardy for the same offense.” Const, art. I, § 9.
Heater, 67 Wn.2d at 736 (citing State v. Schoel, 54 Wn.2d 388, 341 P.2d 481 (1959)).
Miranda, 384 U.S. at 444.
id.
Thompson v. Keohane, 516 U.S. 99, 116 S. Ct. 457, 133 L. Ed. 2d 383 (1995); Miranda, 384 U.S. 436.
Keohane, 516 U.S. at 107.
Miranda, 384 U.S. at 469; State v. Stewart, 113 Wn.2d 462, 478, 780 P.2d 844 (1989) (“The Fifth Amendment right to counsel exists solely to guard against coercive, and therefore unreliable, confessions obtained during in-custody interrogation . . . .”).
U.S. Const. amend VI.
“In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel....” Const. art. I, § 22.
Powell v. Alabama, 287 U.S. 45, 47, 53 S. Ct. 55, 77 L. Ed. 158 (1932).
City of Tacoma v. Heater, 67 Wn.2d 733, 737, 409 P.2d 867 (1966).
The police regulation challenged in Heater prohibited DUI suspects from making telephone calls until four hours after arrest under the reasoning that a person under the influence of intoxicants would have reached a state of sobriety after four hours. Heater, 67 Wn.2d at 739-40.
Heater, 67 Wn.2d at 737-41.
Kirby v. Illinois, 406 U.S. 682, 689, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972).
Keefe v. Dep’t of Licensing, 46 Wn. App. 627, 629, 731 P.2d 1161, review denied, 108 Wn.2d 1018 (1987) (citing State ex rel. Juckett v. Evergreen Dist. Court, 100 Wn.2d 824, 829, 675 P.2d 599 (1984)). See Heinemann v. Whitman County Dist. Court, 105 Wn.2d 796, 718 P.2d 789 (1986).
The State is Petitioner in State v. Templeton and Respondent in State v. Dunn.
Br. of Dunn at 4.
Br. of Dunn at 11 (citing Heinemann 105 Wn.2d at 802 (interpreting former JCrR 2.11, predecessor to CrRLJ 3.1)).
CrRLJ 3.1. (Emphasis added.)
See State v. Trevino, 127 Wn.2d 735, 744, 903 P.2d 447 (1995); 4B Lewis H. Orland & Karl B. Dsgland, Washington Practice: Rules Practice, CrRLJ 3.1 task force cmt. at 455-57 (5th ed. 1997). The Washington State Bar Association in 1987 appointed a task force on Rules for Courts of Limited Jurisdiction.
Br. of Templeton at 6-7, Br. of Dunn at 7.
Heinemann, 105 Wn.2d at 802; Trevino, 127 Wn.2d at 743 n.9.
State v. Fitzsimmons, 93 Wn.2d 436, 444-45, 610 P.2d 893, vacated and remanded, 449 U.S. 977,101S. Ct. 390, 66 L. Ed. 2d 240 {Fitzsimmons I), aff’d on remand, 94 Wn.2d 858, 620 P.2d 999 (1980) {Fitzsimmons II); Juckett, 100 Wn.2d at 828 (ruling that the right to counsel under former JCrR 2.11 [superseded in different wording by CrRLJ 3.1] attaches before administration of a breath alcohol test).
State v. Franco, 96 Wn.2d 816, 828-29, 639 P.2d 1320 (1982).
Templeton, 107 Wn. App. at 145. The opinions, including ours, variously refer to “counsel,” “attorney,” and “lawyer,” each of which is synonymous.
Heater, 67 Wn.2d at 739; Fitzsimmons I, 93 Wn.2d at 442-43.
Heater, 67 Wn.2d at 739; Fitzsimmons I, 93 Wn.2d at 445.
Br. of State at 1.
State v. Smith, 84 Wn.2d 498, 501-02, 527 P.2d 674 (1974); Emwright v. King County, 96 Wn.2d 538, 543, 637 P.2d 656 (1981).
In re Welfare of Messmer, 52 Wn.2d 510, 512, 326 P.2d 1004 (1958).
See Suburban Fuel Co. v. Lamoreaux, 4 Wn. App. 179, 181, 480 P.2d 216 (1971).
Smith, 84 Wn.2d at 499-500.
Id. at 501.
Emwright, 96 Wn.2d at 543 (quoting Household Fin. Corp. v. State, 40 Wn.2d 451, 455, 244 P.2d 260 (1952)).
Smith, 84 Wn.2d at 501.
Templeton, 107 Wn. App. at 146.
State v. Smith, 84 Wn.2d 498, 527 P.2d 674 (1974).
State v. Fields, 85 Wn.2d 126, 530 P.2d 284 (1975).
Smith, 84 Wn.2d at 503-08.
Id. at 502.
Fields, 85 Wn.2d at 127.
Id. at 128-29.
Id.
Pet. for Review (Templeton) at 10.
People v. Reichenbach, 224 Mich. App. 186, 568 N.W.2d 383 (1997), aff’d, 459 Mich. 109, 587 N.W.2d 1 (1998).
446 U.S. 222, 100 S. Ct. 1585, 64 L. Ed. 2d 169 (1980).
511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994).
Reichenbach, 224 Mich. App. at 192-93.
People v. Reichenbach, 459 Mich. 109, 127 n.18, 587 N.W.2d 1 (1998).
Id.
Heater, 67 Wn.2d at 737; Smith, 84 Wn.2d 498; Fields, 85 Wn.2d 126; Juckett, 100 Wn.2d 824; Trevino, 127 Wn.2d 735.
See id.
State v. Fitzsimmons, 93 Wn.2d 436, 610 P.2d 893, vacated and remanded, 449 U.S. 977, 101 S. Ct. 390, 66 L. Ed. 2d 240, aff’d on remand, 94 Wn.2d 858, 620 P.2d 999 (1980).
Fitzsimmons I, 93 Wn.2d at 449-51.
Washington v. Fitzsimmons, 449 U.S. 997, 101 S. Ct. 390, 66 L. Ed. 2d. 240 (1980).
Fitzsimmons II, 94 Wn.2d at 858 (quoting Smith, 84 Wn.2d at 502). Former JCrR 2.11(c) has been superseded by CrRLJ 3.1(c)(2) in substantially the same language.
State ex rel. Juckett v. Evergreen Dist. Court, 100 Wn.2d 824, 828-30, 675 P.2d 599 (1984).
Heinemann, 105 Wn.2d at 802. The task force replaced the phrase “is taken into custody” with the “has been arrested” upon adoption of CrRLJ 3.1(b)(1).
See Smith, 84 Wn.2d at 501-02; Fields, 85 Wn.2d at 128-29.
RCW 2.04.190 provides in part: “The supreme court shall have the power to prescribe ... the forms of writs and all other process ... of taking and obtaining evidence .. . and generally to regulate and prescribe by rule the forms for and the kind and character of entire pleading, practice and procedure to be used in all suits, actions, appeals and proceedings of whatever nature ....”
Templeton, 107 Wn. App. at 147.
Id. (quoting Trevino, 127 Wn.2d at 746).
Id. (citing Heater, 67 Wn.2d at 739).
Dunn, 108 Wn. App. at 492 & n.5.
Dunn, 108 Wn. App. at 492.
Heinemann, 105 Wn.2d at 802.
Id.
Juckett, 100 Wn.2d at 831; State v. Teller, 72 Wn. App. 49, 863 P.2d 590 (1993).
Juckett, 100 Wn.2d at 827; Teller, 72 Wn. App. at 51. The WSP DUI Arrest Report form used in the cases now before the court does not include the words “at this time.”
Templeton, 107 Wn. App. at 150 (footnote omitted).
Id.
Dunn, 108 Wn. App. at 493.
State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980) (citing State v. Nist, 77 Wn.2d 227, 461 P.2d 322 (1969)).
State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001) (quoting Smith, 106 Wn.2d at 780).
Dunn, 108 Wn. App. at 495 (quoting CrR 3.1(b)(1)); CrRLJ 3.1(b)(1).
Id.
State v. Hutchinson, 135 Wn.2d 863, 882, 959 P.2d 1061 (1998).
See id. at 882-83.
Dissenting Opinion
(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 Wn. App. 141, 27 P.3d 222 (2001) and reverse the Court of Appeals, Division Two, in State v. Dunn, 108 Wn. 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 CrRLJ 3.1 has no constitutional or statutory basis, enact-
Under State v. Smith, 84 Wn.2d 498, 527 P.2d 674 (1974), and State v. Fields, 85 Wn.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 CrRLJ 3.1 comes within the ambit of RCW 2.04.190 and the court’s inherent power to prescribe procedural court rules. Because of the fleeting nature of intoxication evidence previously acknowledged by this court, the rule affects and regulates the process of “taking and obtaining evidence” and preservation of such evidence. RCW 2.04.190. Preservation of evidence is a procedural matter.
I believe the error in not following the requirements of CrRLJ 3.1 resulted in prejudicial harm to the accused persons. I would conclude that suppression of the evidence is the proper remedy.
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
I would therefore affirm the Court of Appeals, Division One, in State v. Templeton, which held promulgation of CrRLJ 3.1 to be a proper exercise of the Supreme Court’s rule-making powers, and that the advice of the right to counsel given the accused persons by the officers did not meet the requirements of CrRLJ 3.1 which constituted prejudicial error requiring suppression of the BAC breath test results. I would reverse the Court of Appeals, Division Two, in State v. Dunn, which held that inadequate CrRLJ 3.1 warnings given to the accused persons by the officers was harmless error not requiring suppression of the BAC breath test results.
Johnson, Sanders, and Chambers, JJ., concur with Smith, J.