City of Seattle v. Orwick

Decision Date28 December 1989
Docket NumberNo. 55903-1,55903-1
Citation784 P.2d 161,113 Wn.2d 823
PartiesCITY OF SEATTLE, Petitioner, v. John ORWICK, Respondent.
CourtWashington Supreme Court

Douglas N. Jewett, Seattle City Atty., Michael Brown, Asst., Charlotte E. Clark-Mahoney, Asst., Seattle, for petitioner.

Pisto, Kalenius & Rhodes, Laird A. Pisto, Federal Way, for respondent.

ANDERSEN, Justice.


At issue in this case is whether charges against a defendant should be dismissed because the defendant was denied immediate access to counsel.

At approximately 9:25 p.m. on November 7, 1985, two Seattle police officers responded to a car-pedestrian accident. On approaching the accident scene, one officer saw The defendant says that he demanded an attorney when he arrived at the police station. He claims that an officer told him he would "be here for awhile". Placed in a holding cell, the defendant kicked the door and demanded to call his attorney, post bail or be released. Officers then put him in a 4-point restraint. The defendant was later found bleeding from a head injury and was taken by ambulance to Harborview Hospital.

                John Orwick, the defendant herein, leave the sidewalk andlie on top of the unconscious accident victim.   The officer said that when he asked the defendant if he was giving aid to the victim, the defendant responded "no".   After repeatedly asking the defendant to get off the victim and receiving expletive responses, the officer forcibly removed the defendant from the [784 P.2d 162] accident victim.   When the defendant took a couple of swings at the officer, the officer read him his Miranda rights and arrested him for obstructing a public officer (Seattle Municipal Code § 12A.16.010(A)(3))

Upon arriving at the hospital at approximately 10:41 p.m., the defendant refused all treatment from hospital staff. He was belligerent to nurses who attempted to treat him. They did manage, however, to test his blood alcohol level; it read .126.

The defendant testified that he asked several times to call his attorney while he was at the hospital. Hospital staff refused, citing the hospital's then policy of not giving phone privileges to police-hold patients for safety reasons. Unable to treat the defendant and verify the extent of his injuries, the hospital held him until about 6 a.m. and then returned him to police custody. Sometime that morning the defendant contacted his attorney and was released on bond.

The defendant says that he returned the next day to the accident scene in an effort to locate witnesses to his altercation with the police. The defendant also says that he kept returning to the scene, posting notices to possible witnesses on nearby buildings for over a month following his arrest. The defendant further states that he was unsuccessful in locating any witnesses, even though four individuals, two of Before trial, the defendant moved to dismiss the charge against him on several grounds, including the claim that he was unlawfully denied access to counsel. The City admitted denying the defendant his right of access to counsel, but argued that the proper remedy for that denial was suppression of evidence rather than dismissal.

                whom wore short-sleeved shirts, allegedly saw the altercation.   The arresting officers agree that other individuals were present at the accident scene.   The officers, however, questioned bystanders about the pedestrian-vehicle accident and not about the altercation with the defendant

In response to a pretrial motion, the municipal court dismissed the charge based on unlawful denial of counsel. The Superior Court affirmed the dismissal. The Court of Appeals granted discretionary review and also affirmed the dismissal, but on other grounds. 1 The City then sought review of that decision and we granted discretionary review.

One primary issue is presented to this court.


Is dismissal the proper remedy for denial of a defendant's right of access to counsel when the defendant is not prejudiced by the denial?


CONCLUSION. The special dismissal rule that applies when access to counsel is denied in driving while intoxicated (DWI) cases does not apply when intoxication is not an element of the offense charged. Dismissal in a case where intoxication is not an element of the offense charged is appropriate only when a defendant has been prejudiced by the denial of access to counsel.

The municipal court dismissed the obstruction charge filed against the defendant based on the City's conceded failure to provide him with access to an attorney as required by former court rule JCrR 2.11. 2 JCrR 2.11(b)(1) provided that the right to counsel in all criminal proceedings shall attach "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." JCrR 2.11(c)(2) provided that a person in custody who desires counsel must at the earliest opportunity "be provided access to a telephone, ... and any other means necessary to place him in communication with a lawyer." As support for the dismissal, the municipal court cited our holding in State v. Fitzsimmons, 93 Wash.2d 436, 610 P.2d 893, 18 A.L.R.4th 690, vacated, 449 U.S. 977, 101 S.Ct. 390, 66 L.Ed.2d 240, aff'd on remand, 94 Wash.2d 858, 620 P.2d 999 (1980).

In Fitzsimmons, this court dismissed driving while intoxicated (DWI) charges because the defendant was not allowed to contact an attorney following his arrest in violation of JCrR 2.11 and the sixth amendment to the United States Constitution. This court observed in Fitzsimmons that a criminal defendant's Sixth Amendment right to counsel attaches when a critical stage in a criminal prosecution resulting in loss of liberty is reached. 3 The period after arrest in a DWI case is a critical stage for right to counsel purposes because of the unique nature of the DWI charge. 4 The Fitzsimmons court explained this conclusion by citing its analysis in Tacoma v. Heater, 67 Wash.2d 733, 409 P.2d 867 (1966):

The denial of counsel [directly after charging] prevented the defendant's effective preparation for his defense to the charge against him. It was necessary for him to present evidence showing that he was not under the influence of intoxicating liquor at the time of his arrest. A most effective way to present such evidence would be through disinterested witnesses who could observe his condition soon after his arrest or after he had been booked for the crime, and by a blood test administered by a doctor....

The defendant had virtually no other way to obtain the necessary proof of his innocence.

Heater, at 739-40, 409 P.2d 867, cited in Fitzsimmons, 93 Wash.2d at 442, 610 P.2d 893. Heater thus established the rule that "when the defendant is charged with driving while under the influence of intoxicating liquor, [the defendant] must be allowed access to legal counsel immediately after arrest and charging." 5 The Fitzsimmons court characterized this approach as one which conclusively presumes prejudice to the DWI defendant who is denied immediate access to counsel. 6 The court concluded in Fitzsimmons that it must inevitably follow that the defendant suffered irreparable prejudice

because of the unique circumstances of a driving while under the influence case in which denial of access to counsel may prevent development of a defense because the evidence of intoxication disappears within a relatively short time.

Fitzsimmons, 93 Wash.2d at 451, 610 P.2d 893. The court thus ordered the charges against the defendant dismissed. In so doing, however, the court reiterated the importance of intoxication as an element of the offense in requiring a rule that allows the defendant immediate access to an attorney. "Without this factor," Fitzsimmons held, "the period immediately following arrest and charging for a traffic offense would not be a 'critical stage' of the criminal prosecution in which the defendant's Sixth Amendment right attaches." 7

The dismissal rule applied in Heater and Fitzsimmons was cited in the subsequent DWI case of State v. Prok, 107 Wash.2d 153, 157, 727 P.2d 652 (1986). In Prok, however, the case against the defendant was not dismissed. This was because credible untainted evidence was obtained before the JCrR 2.11 violation occurred, or before the defendant was taken into custody. 8 We there held that the evidence obtained against the defendant before his right to counsel was violated was admissible and that, because of the admissibility of such evidence, dismissal was inappropriate. 9

We hold here that the dismissal rule applied in Heater and Fitzsimmons and described in Prok is not applicable in the case before us because intoxication is not an element of the obstruction offense with which the defendant is charged. 10 In a DWI case, a denial of immediate access to counsel is presumed prejudicial because of the fleeting nature of intoxication and the critical importance of the defendant's condition at the time of arrest to the defendant's defense. Where intoxication is not an element of the offense charged, the importance of such transitory types of evidence is not assumed, and there is no presumption of prejudice when immediate access to counsel is denied. Thus, there is no automatic dismissal rule in such cases. As the United States Supreme Court has stated, "certain violations of the right to counsel may be disregarded as harmless error.... More particularly, absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate". 11 Consistent with these principles is our oft-cited rule that dismissal of charges is an extraordinary remedy available only when there has been prejudice to the rights of the accused which materially affected his or her rights to a fair trial. 12

Because of a lack of prejudice, this court declined to dismiss charges in State v. Louie, 68 Wash.2d 304, 413 P.2d 7 (1966), cert....

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