State v. Fitzsimmons
| Decision Date | 01 May 1980 |
| Docket Number | No. 46366,46366 |
| Citation | 610 P.2d 893,93 Wn.2d 436 |
| Parties | , 18 A.L.R.4th 690 STATE of Washington, Respondent, v. Edwin FITZSIMMONS, Petitioner. |
| Court | Washington Supreme Court |
William Johnston, Bellingham, for petitioner.
David McEachran, Pros. Atty., Randall Watts, Deputy Pros. Atty., Bellingham, for respondent.
Defendant Edwin Fitzsimmons appeals his conviction for driving while under the influence of intoxicating liquor. RCW 46.61.502, .504, .515. The Court of Appeals, Division I, affirmed the judgment entered in the Superior Court of Whatcom County following trial de novo on appeal from a conviction in district court. State v. Fitzsimmons, 23 Wash.App. 1012 (1979) (unpublished opinion).
This court granted defendant's petition for review to consider two questions:
(1) Was the defendant illegally denied access to appointed counsel while in custody immediately after he was arrested and charged for the offense of driving while under the influence of intoxicating liquor? (2) If the defendant was illegally denied access to appointed counsel, what is the appropriate remedy for this violation of his rights?
We reverse Mr. Fitzsimmons' conviction for driving while under the influence of intoxicating liquor and remand the case to the trial court for dismissal of the charge against him for the reasons set forth below.
Mr. Fitzsimmons was stopped at 11:00 p. m. on September 27, 1977, a Saturday by Officer Ken Knies of the Washington State Patrol. Mr. Fitzsimmons was driving his automobile south on a road south of Blaine, Washington. Officer Knies had observed the defendant's vehicle swerve across the center line approximately one foot twice, once in the face of three northbound cars, before he stopped Mr. Fitzsimmons.
After stopping the defendant, Officer Knies detected a moderate to strong odor of intoxicants on Mr. Fitzsimmons' breath and observed that his eyes were watery and bloodshot. There was no evidence of the quantity of liquor Mr. Fitzsimmons had consumed or how long before his arrest he had drunk liquor. After having the defendant perform several physical tests of sobriety at the scene, Officer Knies arrested Mr. Fitzsimmons, placed him in custody, and by citation charged him with driving while under the influence of intoxicating liquor. He then called a mobile DWI van, which arrived at approximately 11:30 p. m.
The defendant was taken into the van and read his Miranda rights, including his right to appointed counsel if he could not afford legal assistance. Mr. Fitzsimmons then requested an appointed attorney, stating that he felt that he "should have the right to legal advice right now." The defendant told the officer that he had no money. Officer Knies informed the defendant that an appointed attorney could not be provided for him at that time, telling Mr. Fitzsimmons "You're not going to get anything for free tonight." Officer Knies said that, instead, "The Court can appoint (a lawyer) at the time of pre-trial or at arraignment date." He also told the defendant that because he was a Whatcom County resident, it was likely that he would be released on personal recognizance rather than taken to jail. The stipulated facts do not reveal when Mr. Fitzsimmons was released or whether and for how long he was jailed after his arrest and citation.
The defendant refused to take a Breathalyzer test after being told he could not have a court-appointed attorney's advice at that time. He was convicted in district court of driving while under the influence of intoxicating liquor. The record does not reveal when he actually first appeared before a magistrate. The findings of fact prepared when Mr. Fitzsimmons was convicted reveal that the defendant was an indigent and eligible for appointed counsel at the time of his arrest. It does not appear when he was first appointed counsel, but Mr. Fitzsimmons was represented by an appointed attorney in superior court. On appeal to the superior court, Mr. Fitzsimmons, acting through his appointed attorney, moved to have the charges against him dismissed on the basis of Tacoma v. Heater, 67 Wash.2d 733, 409 P.2d 867 (1966). The court denied the motion for dismissal but concluded that Mr. Fitzsimmons had illegally been denied access to counsel and therefore ruled that all evidence obtained after that violation of the defendant's rights would be suppressed. Because all of the State's evidence had been gathered before Mr. Fitzsimmons' request for counsel, no evidence was actually suppressed.
Mr. Fitzsimmons was subsequently convicted in superior court on the basis of stipulated facts. He was sentenced to 180 days in the Whatcom County jail, fined $312.50, and placed on probation for one year. The Court of Appeals affirmed the suppression order and the conviction. This court granted defendant's petition for review of the conviction.
DEFENDANT'S RIGHT TO ACCESS TO APPOINTED COUNSEL.
The defendant contends that he was illegally denied access to appointed counsel when, upon informing the charging officer that he had no money but that he desired legal advice, he was told in substance there was no provision for access to appointed counsel who could advise him at that time, but that he would have to wait for assistance until he had appeared before a magistrate some time later. Both justice court rules and constitutional case law show that Mr. Fitzsimmons' contention that he was illegally denied access to appointed counsel is correct.
JCrR 2.11(c), which states that an individual must be immediately advised of his right to appointed counsel when taken into custody, requires that "(a)t 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." Although Mr. Fitzsimmons requested legal advice, the provisions of JCrR 2.11(c) were not complied with. He was not provided access to a phone or with the telephone numbers of attorneys who serve as appointed counsel to indigents. See also JCrR 2.11(b)(1), which states that "(t)he 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." Here, Mr. Fitzsimmons' right to counsel attached both because he was arrested and placed in custody and because he was charged. His rights under these rules were violated when he was denied the information and means necessary to allow him to contact appointed counsel.
Under the unique circumstances of this case, compliance with the provisions of JCrR 2.11 was also constitutionally compelled. Mr. Fitzsimmons justifiably relies on Tacoma v. Heater, supra, in which this court ruled that it is constitutional error to prevent a defendant charged with driving while under the influence of intoxicating liquor from having access to the means of obtaining legal advice.
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. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Tacoma v. Heater, supra, State v. Jackson, 66 Wash.2d 24, 400 P.2d 774 (1965).
In Heater, the defendant was prevented from calling his privately-retained attorney by a Tacoma Police Department regulation that denied individuals charged with an offense involving intoxication the right to make a telephone call until 4 hours had passed since arrest. The court emphasized the unique nature of the charge of driving while under the influence in ruling that the police regulation interfered with the defendant's Sixth Amendment right to counsel at a "critical stage" in his case:
At what time was a "critical stage" reached in the defendant's case? It was no later than the moment when, immediately after the police officers had conducted their tests for sobriety and had interrogated the defendant, they charged him with the offense.
The denial of counsel at this point 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 evidence of intoxication dissipates with the passage of time. The 4-hour rule . . . recognizes that after 4 hours a person under the influence of intoxicating liquor will have reached a state of sobriety so that he is safe to be released . . .
The defendant had virtually no other way to obtain the necessary proof of his innocence.
It was essential to the effective preparation of his defense that the defendant be permitted to communicate with his attorney immediately after he was charged, in order to secure assistance of counsel in the pretrial period as required by the constitutional standards.
Tacoma v. Heater, supra at 739-40, 409 P.2d at 871.
Heater thus established the rule in this case that when the defendant is charged with driving while under the influence of intoxicating liquor, he must be allowed access to legal counsel immediately after arrest and charging.
As in Heater, the defendant here was charged with driving while under the influence of intoxicating liquor by the officer who issued a citation and was denied immediate access to legal counsel. The only potentially distinguishing characteristic is the fact that in this case Mr. Fitzsimmons asserted that he was indigent and requested access not to a retained attorney but to appointed counse...
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