Grosse, C.j. Coleman, J., and Winsor, J. Pro Tem., concur.
Jeffrey A. Ohlson was charged in Bellevue District Court with driving while under the influence of intoxicants (DWI). The District Court suppressed the results of a breath test and dismissed the charges after finding Ohlson was denied access to counsel. The King County Superior Court reversed the District Court on the suppression issue, but affirmed the dismissal of charges because the City of Bellevue (City) did not provide Ohlson actual contact with a public defender. The City appeals the dismissal of the DWI charge on this basis. Ohlson cross-appeals alleging the Superior Court erred in reversing the District Court's decision to suppress the results of the breath test. We affirm the Superior Court on the suppression issue, but reverse on the access to counsel issue.
At the pretrial hearing in District Court, Officer Gasperetti testified that he arrested Ohlson for DWI on April 25, 1988, at 7:15 p.m. The officer advised Ohlson of his constitutional rights and transported him to the Bellevue Police Department. After Officer Gasperetti advised Ohlson pursuant to RCW 46.20.308, the implied consent statute, Ohlson inquired as to whether he should take the breath test. When Officer Gasperetti replied that he could not give legal advice, Ohlson stated he wanted to talk to his attorney. In response, Officer Gasperetti used the telephone book to locate the telephone number of Ohlson's attorney and attempted to reach him. Officer Gasperetti made six attempts to reach Ohlson's attorney but was unable to do so because the line was continuously busy for at least 20 minutes. Since Ohlson still wanted to talk to an attorney,
Officer Gasperetti called three different public defenders, but was unable to contact any of them. He reached the answering machines of two attorneys and no one answered the telephone for the third. When the officer offered Ohlson an opportunity to contact another attorney, Ohlson stated he did not know any other attorneys. Ohlson then consented to take the breath test without advice of counsel.
It is apparent from the decision of the District Court that it dismissed the case based on its interpretation of State v. Fitzsimmons, 93 Wash. 2d 436, 610 P.2d 893, 18 A.L.R.4th 690, vacated and remanded, 449 U.S. 977, aff'd on remand, 94 Wash. 2d 858, 620 P.2d 999 (1980),*fn1 that actual access to counsel is required. The court found that Officer Gasperetti acted reasonably in his attempts to put Ohlson in contact with private counsel and with a public defender. The court also stated that the inability of the arresting officer to reach a public defender resulted from a breach of the public defender agency's contract with the City and therefore worked to the detriment of Ohlson. The Superior Court affirmed the dismissal based on the same interpretation of Fitzsimmons.
(1) When a person has been arrested he or she shall as soon as practicable be advised of the right to a lawyer. . . .
(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 assigning a lawyer, and any other means necessary to place him or her in communication with a lawyer.
The City argues that Officer Gasperetti did everything possible to comply with the rule, including providing Ohlson access to the telephone and to the public defender.*fn2
 To determine whether Ohlson was denied access to counsel under this rule, an appellate court must review the facts and circumstances of each case. Tacoma v. Myhre, 32 Wash. App. 661, 648 P.2d 912 (1982). In dismissing the charge against Ohlson the trial court relied on Fitzsimmons wherein the Washington Supreme Court held that a criminal defendant in a DWI case has the right to access to counsel prior to taking a breath test. Fitzsimmons, 93 Wash. 2d at 441. In that case a police officer stopped, arrested, and charged the defendant with DWI after the defendant failed sobriety tests. After the defendant was read his Miranda rights and requested an appointed attorney, the officer told him he would not be appointed counsel that evening and that he would have to wait until arraignment when the court would appoint counsel. The Supreme Court held that the defendant was illegally denied access to counsel and concluded that dismissal of the charge was the appropriate remedy.
It is evident from Fitzsimmons that a defendant has no right to have an attorney physically present when he takes the breath test. Fitzsimmons, 93 Wash. 2d at 447. The court stated:
Often telephone consultation alone at the stage in the proceedings considered here will provide the defendant with adequate legal assistance to assure his basic rights to fair trial. The State must merely insure that the defendant can immediately contact counsel who can help him make the decision as to how his defense will be structured, and whether that defense requires the attorney's physical presence at the scene of the charging.
Fitzsimmons, 93 Wash. 2d at 448. In discussing whether the requirement of access to counsel for indigent defendants will be burdensome to the police, the court noted that as a practical matter 24-hour access to appointed counsel by telephone is available in some areas of the ...