Sweeney, A.C.J.
The State of Washington appeals suppression of evidence of a mouth examination given before the suspect was read his Miranda1 rights in the course of a BAC Verifier DataMaster breath test. The State contends (1) the CrRLJ 3.1 2 right to counsel does not attach before an officer asks to look or looks into a suspect’s mouth for purposes of a driving while under the influence of alcohol (DWI) investiga[498]*498tion; and (2) a DWI suspect must show actual prejudice to establish a violation of his right to a lawyer. We affirm.
Facts
On January 1, 1992, just after midnight, Deputy Randy Strzelecki observed a vehicle weaving on East Sprague in Spokane. Deputy Strzelecki stopped the vehicle and asked its driver, Oscar C. Trevino, to perform standard field tests for DWI investigation. Concluding that Mr. Trevino had failed the field tests, Deputy Strzelecki arrested him and drove him to the Public Safety Building to perform a BAC Verifier DataMaster breath test.
At 1:02 a.m. the deputy asked to check and then checked Mr. Trevino’s mouth to begin the 15-minute observation period required byWAC 448-13-0403 for a breath test. At 1:05 a.m. the deputy read Mr. Trevino his Miranda warnings and at 1:09 a.m. he gave Mr. Trevino his implied consent warnings.4 Mr. Trevino stated he understood both warnings and [499]*499signed an affidavit to that effect. After consulting with an attorney, he submitted to two breath tests. Mr. Trevino was issued a citation for driving while under the influence of alcohol. RCW 46.61.502.
Mr. Trevino moved to suppress evidence of (1) the deputy’s inquiry whether he had anything foreign in his mouth; (2) Mr. Trevino’s response to the question; and (3) the deputy’s observation of Mr. Trevino’s mouth. At the hearing on the motion conducted April 29, 1992, the District Court suppressed the evidence because it was obtained before Mr. Trevino had been notified of his right to counsel. Although the court did not suppress results of the breath test, the State was effectively prevented from entering those results because it could not establish there had been nothing in Mr. Trevino’s mouth during the 15 minutes prior to the test.
On review of the District Court’s ruling, the Superior Court affirmed, concluding that a suspect’s refusal to open his or her mouth for the officer’s investigation is, in effect, a refusal to take the breath test. The court also held that a DWI suspect does not need to establish prejudice in order to suppress evidence obtained in violation of CrRLJ 3.1(c)(1).
We granted discretionary review pursuant to RAP 2.3(d)(3).5
[500]*500Right to Counsel
CrRLJ 3.1(b)(1) provides "[t]he right to a lawyer shall accrue as soon as feasible after the defendant has been arrested . . .”. After arrest, the suspect must be advised "as soon as practicable” of the right to a lawyer. CrRLJ 3.1(c)(1). The task force6 comment to rule 3.1 states that "as soon as practicable” should be interpreted as "immediately” if no problems of interpretation — such as with a deaf person or non-English-speaking person — exist. 4A Lewis H. Orland & Karl B. Tegland, Wash. Prac., Rules Practice CrRLJ 3.1 task force comment, at 780 (4th ed. 1990).
The State contends the right to an attorney afforded by CrRLJ 3.1 did not attach before the deputy asked Mr. Trevino if he had anything foreign in his mouth or looked into Mr. Trevino’s mouth to check. It argues these actions constitute nontestimonial conduct similar to sobriety field tests, and as such, are exempted from Miranda protections.7 It relies on Heinemann v. Whitman Cy., 105 Wn.2d 796, 718 P.2d 789 (1986) for the proposition that Miranda warnings, including the right to a lawyer, are not required before field sobriety tests and other nontestimonial situations. Heinemann, at 801.
In Heinemann, however, the suspect was not in custody at the time of the field tests and therefore did not yet have the right to counsel required by former JCrR 2.11.8 [501]*501Noting that former JCrR 2.11(c) goes beyond the requirements to the sixth amendment to the United States Constitution, the Heinemann court ruled that the defendant must be advised of his right to counsel immediately after he is taken into custody. Heinemann, at 802. In Mr. Trevino’s case, as soon as practicable means "immediately” after his arrest in the field. CrRLJ 3.1(c)(1).
The State urges interpretation of the phrase "as soon as practicable” to mean in the most efficient time. It argues the reliability of the results of the breath test is best insured by beginning the 15-minute observation period before the possible delay resulting from a suspect conferring with a lawyer. Alternatively, it contends the mouth check at the beginning of the 15-minute observation period is not part of the actual breath test. It asserts the events leading up to the air samples, including the observation period, are not part of the test because they constitute nontestimonial conduct. We disagree on both counts.
Following an arrest, the State must inform a defendant of the right to counsel before administering the breath test. State ex rel. Juckett v. Evergreen Dist. Court, 100 Wn.2d 824, 831, 675 P.2d 599 (1984) (applying former JCrR 2.11(c)(2)). The test must be performed "according to methods approved by the state toxicologist . . .”. RCW 46.61.506(3). Those methods, set out in WAC 448-13-040, include the requirement that the suspect’s mouth be checked for foreign objects before a mandatory 15-minute observation period. The mouth check and observation period are therefore integral steps in the BAC Verifier DataMaster test procedure.
Here, refusal to open his mouth would have indicated Mr. Trevino’s refusal to take the breath test because the test procedure could not have started until his mouth was checked. WAC 448-13-040. Accordingly, if he had refused to open his mouth, Mr. Trevino could have lost his driver’s license for a [502]*502year and the refusal would have been admissible in criminal proceedings. RCW 46.20.308(2). Mr. Trevino had a right to be advised of his right to a lawyer before the State began administration of the BAC Verifier DataMaster test procedure. See State v. Schulze, 116 Wn.2d 154, 164, 804 P.2d 566 (1991).
Prejudice
The State next contends the Superior Court erred in suppressing the mouth examination without a showing of actual prejudice. Relying on Spokane v. Kruger, 116 Wn.2d 135, 803 P.2d 305 (1991) and its companion case, State v. Schulze, supra,
Free access — add to your briefcase to read the full text and ask questions with AI
Sweeney, A.C.J.
The State of Washington appeals suppression of evidence of a mouth examination given before the suspect was read his Miranda1 rights in the course of a BAC Verifier DataMaster breath test. The State contends (1) the CrRLJ 3.1 2 right to counsel does not attach before an officer asks to look or looks into a suspect’s mouth for purposes of a driving while under the influence of alcohol (DWI) investiga[498]*498tion; and (2) a DWI suspect must show actual prejudice to establish a violation of his right to a lawyer. We affirm.
Facts
On January 1, 1992, just after midnight, Deputy Randy Strzelecki observed a vehicle weaving on East Sprague in Spokane. Deputy Strzelecki stopped the vehicle and asked its driver, Oscar C. Trevino, to perform standard field tests for DWI investigation. Concluding that Mr. Trevino had failed the field tests, Deputy Strzelecki arrested him and drove him to the Public Safety Building to perform a BAC Verifier DataMaster breath test.
At 1:02 a.m. the deputy asked to check and then checked Mr. Trevino’s mouth to begin the 15-minute observation period required byWAC 448-13-0403 for a breath test. At 1:05 a.m. the deputy read Mr. Trevino his Miranda warnings and at 1:09 a.m. he gave Mr. Trevino his implied consent warnings.4 Mr. Trevino stated he understood both warnings and [499]*499signed an affidavit to that effect. After consulting with an attorney, he submitted to two breath tests. Mr. Trevino was issued a citation for driving while under the influence of alcohol. RCW 46.61.502.
Mr. Trevino moved to suppress evidence of (1) the deputy’s inquiry whether he had anything foreign in his mouth; (2) Mr. Trevino’s response to the question; and (3) the deputy’s observation of Mr. Trevino’s mouth. At the hearing on the motion conducted April 29, 1992, the District Court suppressed the evidence because it was obtained before Mr. Trevino had been notified of his right to counsel. Although the court did not suppress results of the breath test, the State was effectively prevented from entering those results because it could not establish there had been nothing in Mr. Trevino’s mouth during the 15 minutes prior to the test.
On review of the District Court’s ruling, the Superior Court affirmed, concluding that a suspect’s refusal to open his or her mouth for the officer’s investigation is, in effect, a refusal to take the breath test. The court also held that a DWI suspect does not need to establish prejudice in order to suppress evidence obtained in violation of CrRLJ 3.1(c)(1).
We granted discretionary review pursuant to RAP 2.3(d)(3).5
[500]*500Right to Counsel
CrRLJ 3.1(b)(1) provides "[t]he right to a lawyer shall accrue as soon as feasible after the defendant has been arrested . . .”. After arrest, the suspect must be advised "as soon as practicable” of the right to a lawyer. CrRLJ 3.1(c)(1). The task force6 comment to rule 3.1 states that "as soon as practicable” should be interpreted as "immediately” if no problems of interpretation — such as with a deaf person or non-English-speaking person — exist. 4A Lewis H. Orland & Karl B. Tegland, Wash. Prac., Rules Practice CrRLJ 3.1 task force comment, at 780 (4th ed. 1990).
The State contends the right to an attorney afforded by CrRLJ 3.1 did not attach before the deputy asked Mr. Trevino if he had anything foreign in his mouth or looked into Mr. Trevino’s mouth to check. It argues these actions constitute nontestimonial conduct similar to sobriety field tests, and as such, are exempted from Miranda protections.7 It relies on Heinemann v. Whitman Cy., 105 Wn.2d 796, 718 P.2d 789 (1986) for the proposition that Miranda warnings, including the right to a lawyer, are not required before field sobriety tests and other nontestimonial situations. Heinemann, at 801.
In Heinemann, however, the suspect was not in custody at the time of the field tests and therefore did not yet have the right to counsel required by former JCrR 2.11.8 [501]*501Noting that former JCrR 2.11(c) goes beyond the requirements to the sixth amendment to the United States Constitution, the Heinemann court ruled that the defendant must be advised of his right to counsel immediately after he is taken into custody. Heinemann, at 802. In Mr. Trevino’s case, as soon as practicable means "immediately” after his arrest in the field. CrRLJ 3.1(c)(1).
The State urges interpretation of the phrase "as soon as practicable” to mean in the most efficient time. It argues the reliability of the results of the breath test is best insured by beginning the 15-minute observation period before the possible delay resulting from a suspect conferring with a lawyer. Alternatively, it contends the mouth check at the beginning of the 15-minute observation period is not part of the actual breath test. It asserts the events leading up to the air samples, including the observation period, are not part of the test because they constitute nontestimonial conduct. We disagree on both counts.
Following an arrest, the State must inform a defendant of the right to counsel before administering the breath test. State ex rel. Juckett v. Evergreen Dist. Court, 100 Wn.2d 824, 831, 675 P.2d 599 (1984) (applying former JCrR 2.11(c)(2)). The test must be performed "according to methods approved by the state toxicologist . . .”. RCW 46.61.506(3). Those methods, set out in WAC 448-13-040, include the requirement that the suspect’s mouth be checked for foreign objects before a mandatory 15-minute observation period. The mouth check and observation period are therefore integral steps in the BAC Verifier DataMaster test procedure.
Here, refusal to open his mouth would have indicated Mr. Trevino’s refusal to take the breath test because the test procedure could not have started until his mouth was checked. WAC 448-13-040. Accordingly, if he had refused to open his mouth, Mr. Trevino could have lost his driver’s license for a [502]*502year and the refusal would have been admissible in criminal proceedings. RCW 46.20.308(2). Mr. Trevino had a right to be advised of his right to a lawyer before the State began administration of the BAC Verifier DataMaster test procedure. See State v. Schulze, 116 Wn.2d 154, 164, 804 P.2d 566 (1991).
Prejudice
The State next contends the Superior Court erred in suppressing the mouth examination without a showing of actual prejudice. Relying on Spokane v. Kruger, 116 Wn.2d 135, 803 P.2d 305 (1991) and its companion case, State v. Schulze, supra, the State asserts prejudice may not be presumed by the infringement of the right of access to counsel. Kruger, at 145.
A DWI defendant’s right to counsel under CrRLJ 3.1 is not absolute, but is limited to a reasonable time and opportunity to contact a lawyer. State v. Fitzsimmons, 93 Wn.2d 436, 447-48, 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 Wn.2d 858, 620 P.2d 999 (1980), overruled on other grounds by Kruger, at 147; Seattle v. Koch, 53 Wn. App. 352, 357, 767 P.2d 143, review denied, 112 Wn.2d 1022 (1989). For instance, police are not required to wait for a lawyer to arrive on the scene before beginning routine processing (Seattle v. Box, 29 Wn. App. 109, 115-16, 627 P.2d 584 (1981)) and need not delay chemical testing if a lawyer cannot be reached (State v. Staeheli, 102 Wn.2d 305, 309-10, 685 P.2d 591 (1984)). The complete failure to advise an arrested DWI suspect of the right to a lawyer before administering the breath test, however, is prohibited by CrRLJ 3.1(c)(1). Evergreen, at 831. Kruger overruled our Supreme Court’s earlier holding in Fitzsimmons that violations of the former JCrR 2.11 (now CrRLJ 3.1) right to counsel result in a presumption of prejudice requiring dismissal of DWI charges. Kruger, at 145. The State cites the following language to support its contention that prejudice must be proved, not presumed:
[503]*503It is simply not true that irreparable prejudice must inevitably flow from a denial of counsel. . . . [I]n those cases where prejudice does result from the violation of an accused’s right to counsel, suppression of the tainted evidence will protect the rights of the accused to a fair trial.
Kruger, at 145.
The issue in Kruger was whether dismissal of the charges or suppression of the evidence obtained after a violation of the right to counsel was the appropriate remedy. The court held that irreparable prejudice requiring dismissal could not be presumed but that if prejudice does result from evidence tainted by a violation of the right to counsel, suppression is sufficient to protect an accused’s rights. Kruger, at 145. "[Suppression of any evidence acquired after a violation will serve as an effective deterrent to police misconduct.” Kruger, at 145.
Neither Kruger nor its companion case, Schulze, limits suppression of tainted evidence to those cases where actual prejudice is shown. Violation of the CrRLJ 3.1(c) right to counsel requires suppression of evidence tainted by the violation.
The decision of the trial court is affirmed.
Schultheis, J., concurs.