State v. Templeton

• Decision Date: 09 July 2001
• Docket Number: No. 45387-4-I, No. 45386-6-I, No. 45384-0-I, No. 45969-4-I.
• Citation: 107 Wash.App. 141,27 P.3d 222
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Petitioner, v. John D. TEMPLETON, Benjamin Marginean, James Marsh and Richard Post, Respondents.

27 P.3d 222

107 Wash.App. 141

STATE of Washington, Petitioner, v. John D. TEMPLETON, Benjamin Marginean, James Marsh and Richard Post, Respondents.

Nos. 45384-0-I, 45386-6-I, 45387-4-I, 45969-4-I.

Court of Appeals of Washington, Division 1.

July 9, 2001.

Ann Marie Summers, King County Pros. Ofc., Seattle, for Appellant.

William A. Bowman, Bellevue, Joseph Schlosser, Kirkland, Kay Lee, Poulsbo, Jon Fox, Bellevue, for Respondents.

ELLINGTON, J.

CrRLJ 3.1 provides that the right to counsel accrues "as soon as feasible" after arrest. We are asked to decide whether the Supreme Court exceeded its powers in enacting the rule. We hold the court did not exceed its powers, the rule is valid, and the results of the breath tests in these cases were properly suppressed.

I

Four cases are consolidated in this discretionary review. Each Respondent was stopped by a State Patrol officer, arrested for driving under the influence, given Miranda¹ warnings, and transported to the police department. Each was advised of the right to talk to an attorney before answering any questions, and to have an attorney present during questioning. Each waived those rights. Each Respondent was also given implied consent warnings,² and each agreed to submit to a breath test. After answering additional questions, each took the breath test. Once the test results were in hand, each was cited for DUI.

In the cases against Templeton, Marsh, and Marginean, the district court suppressed the results of the breath test, holding the advisement of rights failed to satisfy CrRLJ 3.1. The Post court refused to suppress. On appeal, the superior court held that suppression was required in all four cases. We granted discretionary review, and affirm the superior court.

II

CrRLJ 3.1³ provides that the right to counsel shall accrue "as soon as feasible after the defendant has been arrested,"⁴ and that an arresting officer is required to advise an arrested person of his or her right to a lawyer "as soon as practicable."⁵ According to the State, the rule amounts to judicial creation of a substantive right, which exceeds the Supreme Court's rule-making authority. According to Respondents, the rule is procedural and squarely within the Court's province.

Neither the state or federal constitutions confers a right to counsel immediately upon arrest. Under the Sixth Amendment (and our state constitution article I, section 22), a defendant has a right to counsel at any critical stage in a criminal prosecution.⁶ The Sixth Amendment right attaches, however, only after the initiation of formal judicial criminal proceedings.⁷ When a person is arrested for DUI, the Sixth Amendment right to counsel does not attach until a citation is issued.⁸ Respondents here had not yet been cited when they were asked to take the breath test, and their Sixth Amendment right to counsel had not yet attached. Nor did a right to counsel arise under the Fifth Amendment or state constitution article I, section 9, because a breath test is not testimonial communication.⁹

Our Supreme Court is well aware that CrRLJ 3.1 "goes beyond the requirements of the constitution."¹⁰ The question is whether the rule is a proper exercise of judicial power. The legislature has expressly granted to the Supreme Court the power "to regulate and prescribe by rule the forms for and the kind and character of the entire pleading, practice and procedure to be used in all suits, actions, appeals and proceedings of whatever nature by the ... courts of the state."¹¹ In addition, courts have inherent power to prescribe rules for procedure and practice.¹² Some commingling and overlapping of powers between the three separate branches of government must be expected,¹³ and lines cannot always be clearly drawn between that which is substantive and that which is procedural. In general, "[s]ubstantive law prescribes norms for societal conduct and punishments for violations thereof. It thus creates, defines, and regulates primary rights. In contrast, practice and procedure pertains to the essentially mechanical operations of the courts by which substantive law, rights, and remedies are effectuated."¹⁴

A court rule need not be grounded in a right conferred by the constitution or legislature; a rule has legitimacy if there is a nexus between the rule and the procedural powers or responsibilities of the court. In this regard, two cases are particularly germane. In State v. Smith¹⁵ the issue was the right to bail pending appeal following conviction of a capital offense. The court rule, CrR 3.2(h), authorized bail in all cases, including capital cases. The rule conflicted with RCW 10.73.040, which authorized bail for all criminal actions except "capital cases in which the proof of guilt is clear or the presumption great." In addition, the state constitution, article I, section 20 provides: "All persons charged with crime shall be bailable ... except for capital offenses when the proof is evident...." Despite these discrepancies, the court upheld the rule, because the right to fix bail relates to the court's responsibility for ensuring the charge is adjudicated—a procedural matter solely within the jurisdiction of the court in the exercise of its rule-making power.¹⁶

State v. Fields¹⁷ involved a challenge to CrR 2.3(b), which authorized issuance of search warrants for all crimes, including misdemeanors, whereas statutes authorized search warrants only for investigation of felonies. Observing that the legislature authorized the court to adopt rules for taking and obtaining evidence, the court held search warrants fall in this category.¹⁸ The court also noted its inherent authority to govern court procedures, and held the issuance of a search warrant to be part of the criminal process and a matter of procedure, and therefore a subject properly governed by court rules.¹⁹

Our review of the history of the rule and relevant cases persuades us it is a proper exercise of the court's procedural powers. The rule was adopted in 1973 as part of the Criminal Rules for Justice Court. Two purposes have been identified for the rule: to ensure that arrested persons are aware of their right to counsel "before they provide evidence which might tend to incriminate them,"²⁰ and to ensure that a person arrested for DUI knows of the right to obtain counsel in time to decide whether to obtain an independent blood test or disinterested witnesses to observe his condition.²¹ Both purposes are, in DUI cases, time-sensitive— that is, the evidence in question is by nature transitory, and delay means loss.

Because of the transitory character of intoxication evidence, the Supreme Court held in City of Tacoma v. Heater²² that the period immediately following arrest and citation for driving under the influence constitutes a critical stage in the criminal prosecution, triggering a Sixth Amendment right to counsel.²³ In State v. Fitzsimmons,²⁴ the court held the right derived from both the constitution and the rule. Then in State ex rel. Juckett v. Evergreen District Court,²⁵ the court held the court rule right to counsel entitled the defendants to consult counsel before the breath test even though they were not yet charged and thus not "`faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law'"²⁶ for which a defendant requires counsel.

State v. Fitzsimmons²⁷ is particularly relevant here. Fitzsimmons was cited for DUI. He asked for an attorney and was told he must await the magistrate. He then refused the breath test. The court held both the Sixth Amendment and the court rule were violated: "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."²⁸ On certiorari to the United States Supreme Court, Fitzsimmons was vacated and remanded to the Washington Supreme Court for clarification as to "whether its judgment is based upon federal or state constitutional grounds, or both."²⁹ In a short per curiam opinion, the State Supreme Court unanimously reaffirmed its decision without alteration. Relying on Smith, the court stated its decision placed "primary independent reliance on state court rule JCrR2.11," promulgated "as part of the State Supreme Court's inherent rulemaking powers as `an integral part of the judicial process.'"³⁰ The court's reliance on Smith is important, because Smith stands for the proposition that "promulgation of procedural rules is part of the court's inherent powers."³¹ Clearly the court views the rule as procedural in character and as a proper exercise of its inherent powers.

Then in Spokane v. Kruger,³² the court overruled Fitzsimmons I insofar as it required dismissal (rather than suppression) as a remedy for violation of the rule. In a companion case, the court considered whether blood test results should have been suppressed for violation of the rule, and observed that "[u]nlike the Sixth Amendment, CrR 3.1 does not require the initiation of formal criminal proceedings before the right to counsel arises. Rather, being taken into custody creates the right."³³

This history emphasizes the procedural aspect of the rule. CrRLJ 3.1 involves the taking and obtaining of evidence, an arena delegated to the court by statute and falling within the court's inherent power to govern court procedure. Because of the transitory nature of intoxication, the rule affects preservation of exculpatory as well as incriminating evidence.³⁴ Preservation of evidence is a procedural matter;³⁵ an attorney can advise a driver whether to arrange for independent testing of blood alcohol concentration,³⁶ and whether to take the breath test or refuse and suffer the possible consequence of having the refusal revealed at trial.³⁷ The remedy for violation of the rule is also procedural (s...