En Banc. Durham, J. Callow, C.j., and Brachtenbach, Dolliver, Dore, and Guy, JJ., concur. Utter, Andersen, and Smith, JJ., dissent by separate opinions.
The City of Spokane challenges the dismissal of charges against Daniel W. Kruger for driving while intoxicated. Spokane asserts that the remedy for the denial of counsel in violation of former court rule JCrR 2.11(c)(2), now CrRLJ 3.1(c)(2),*fn1 is suppression of the evidence gathered after the violation, rather than dismissal. We agree and reverse the order of dismissal.
At approximately 1:30 a.m. on June 16, 1987, police officer J.M. Harvey stopped Kruger for speeding and investigation of driving while under the influence of intoxicating liquors (DWI). Prior to the stop, Harvey observed Kruger weaving in his lane. Kruger continued to weave after turning a corner. After making the stop, Harvey observed that Kruger's eyes were bloodshot and watery, his speech was slurred, and there was a strong odor of intoxicants on his
breath. When Kruger got out of his car, he fell against it and was stumbling from side to side. He was unable to complete field sobriety tests. Kruger could not stand on one leg without falling backward and waving his arms. He was unable to follow directions or recite the alphabet. At that time, Kruger was arrested for DWI, handcuffed, and put in the patrol car. Because of Kruger's resistance, Harvey required the assistance of a backup officer, Officer Nemec, to get Kruger into the car.
When Harvey secured Kruger's car, he found an open can of beer, which was approximately one-fourth full, and six other beer cans, three empty and three full, on the backseat. He also found a small container, which later proved to contain marijuana. Kruger was cited for having an open container of alcohol in the car and for speeding. He was then taken to the Spokane City-County Jail, where he was booked for driving while under the influence of alcohol or drugs, resisting arrest, and possession of a controlled substance.
Once at the station, Kruger was taken to the Breathalyzer room. He was read his constitutional rights, which he refused to waive. Kruger then asked to talk with an attorney and Harvey told him that he could talk with an attorney by telephone. Kruger refused to get out of his chair and demanded that Harvey get him an attorney and bring the attorney to the Breathalyzer room. Harvey explained to the defendant that an attorney could not be brought to him. Harvey reiterated at least three times that Kruger could contact an attorney by telephone. Kruger became irritated and began yelling loudly. He refused to get out of the chair to use the phone.
The telephone was located approximately 6 feet from Kruger, just outside the Breathalyzer room. Kruger was not given the public defender phone number nor presented with a list of on-call public defenders. The Spokane County Public Defender provides a list of on-call 24-hour public defenders to the Spokane Police Department for DWI arrests.
Harvey twice read Kruger his implied consent warnings.*fn2 Kruger refused to take the Breathalyzer test and refused to sign the implied consent warnings.*fn3 Kruger was then charged with DWI.
At District Court, Kruger moved to dismiss the DWI charge, asserting that he had been denied access to counsel in violation of JCrR 2.11(c)(2) and the Sixth Amendment. JCrR 2.11(c)(2) provided:
At the earliest opportunity a person in custody who desires counsel shall be provided access to a telephone, the telephone number of the public defender or official responsible for assigning counsel, and any other means necessary to place him in communication with a lawyer.
After his motion for dismissal was denied, Kruger raised the issue in a writ of review in superior court. The Superior Court reversed the District Court's decision and directed that the DWI charge be dismissed because "provid[ing] an accused with the daytime number of the Public Defender's office when that office is closed is not reasonably calculated to place him in communication with a lawyer."
Spokane then moved for discretionary review in the Court of Appeals, arguing that Kruger had not been denied access to counsel and that dismissal was, in any event, an inappropriate remedy for a violation of JCrR 2.11(c)(2). After the commissioner denied the motion, Spokane moved to modify the commissioner's ruling solely on the remedy
issue.*fn4 The Court of Appeals accepted discretionary review, but, relying on State v. Fitzsimmons, 93 Wash. 2d 436, 610 P.2d 893, 18 A.L.R.4th 690, vacated and remanded, 449 U.S. 977, 66 L. Ed. 2d 240, 101 S. Ct. 390, aff'd on remand, 94 Wash. 2d 858, 620 P.2d 999 (1980), upheld the dismissal in an unpublished decision. This court accepted review.
JCrR 2.11(b)(1) establishes the parameters of the right to counsel in these circumstances.
The right to counsel shall accrue as soon as feasible after the defendant is taken into custody, when he appears before a committing magistrate, or when he is formally charged, whichever occurs earliest.*fn5
Thus, Kruger's right to counsel accrued as soon as he was arrested and put in the patrol car.*fn6 Because the City has conceded that Kruger was denied counsel in violation of JCrR 2.11(c)(2), our review is limited to the proper remedy for that violation.
As noted by the Court of Appeals, in Fitzsimmons, this court held that dismissal was the only appropriate remedy in DWI cases for the denial of counsel in violation of JCrR 2.11(c)(2). However, in another more recent DWI case, State v. Prok, 107 Wash. 2d 153, 727 P.2d 652 (1986), suppression was held to be the proper remedy where credible untainted evidence is obtained before the violation.
Although the court in Prok strove to distinguish Fitzsimmons, the factual context of this case exposes the underlying tension between the two opinions. The conflict is fundamental and must be resolved. Thus, this court is faced with a choice as to which remedy -- dismissal or suppression -- best serves to protect the rights of the accused and deter police misconduct, while at the same time protecting the public by keeping drunk drivers off of our highways.
In Fitzsimmons, the defendant was stopped by a police officer at approximately 11 o'clock in the evening after the officer saw him twice swerve across the center line with his car, once when traffic was coming from the other direction. The officer noted that Fitzsimmons had a moderate to strong odor of intoxicants on his breath, and his eyes were watery and bloodshot. After conducting field sobriety tests, the officer arrested Fitzsimmons at the scene, placed him in custody, and cited him for DWI. Fitzsimmons, at 439.
Fitzsimmons was read his rights, including the right to appointed counsel. He then asked for an attorney, but said he had no money to pay for one. The officer told him that he could not have an appointed attorney at that time, but that the court could appoint one at "pre-trial or at [the] arraignment date." Fitzsimmons, at 440. Fitzsimmons then refused to take the Breathalyzer test. Fitzsimmons, at 440.
Fitzsimmons was convicted on the DWI charge and, on appeal to superior court, he moved for dismissal. The court denied the motion, but concluded that Fitzsimmons had illegally been denied access to counsel and ruled that all evidence obtained after the violation of his rights would be suppressed. However, because all of the State's evidence had been gathered before Fitzsimmons requested counsel, no evidence was actually suppressed. Fitzsimmons, at 440. The Court of Appeals affirmed the judgment. On review, this court reversed the appellate court and dismissed the DWI charge.
We held that Fitzsimmons' right to counsel under the rule had been violated because he ...