(dissenting) — I respectfully disagree with the conclusion reached by the majority. Reaching the opposite conclusion, I would affirm the Court of Appeals, Division One, in State v. Templeton, 107 Wn. App. 141, 27 P.3d 222 (2001) and reverse the Court of Appeals, Division Two, in State v. Dunn, 108 Wn. App. 490, 28 P.3d 789 (2001).
The State challenges Criminal Rule for Courts of Limited Jurisdiction (CrRLJ) 3.1, questioning whether the rule is a proper exercise of this court’s rule-making authority. The State contends that because the right to counsel under CrRLJ 3.1 has no constitutional or statutory basis, enact-*223merit of the rule creates a substantive right to counsel which exceeds this court’s judicial power and invalidates the rule. That argument is without merit.
Under State v. Smith, 84 Wn.2d 498, 527 P.2d 674 (1974), and State v. Fields, 85 Wn.2d 126, 530 P.2d 284 (1975), the validity of a court rule need not stand solely on either constitutional or statutory grounds. A nexus between the rule and the court’s rule-making authority over procedural matters validates the court rule, despite possible discrepancies between the rule and legislation or the constitution. Although this case is dissimilar to Smith in the fact that no statute or constitutional provision directly contravenes the court rule, a determination that the rule is valid is consistent with this court’s previous rulings which follow our decisions in Smith and Fields.
The right to counsel established by court rule is a procedural matter under this court’s rule-making authority. The right to counsel under CrRLJ 3.1 comes within the ambit of RCW 2.04.190 and the court’s inherent power to prescribe procedural court rules. Because of the fleeting nature of intoxication evidence previously acknowledged by this court, the rule affects and regulates the process of “taking and obtaining evidence” and preservation of such evidence. RCW 2.04.190. Preservation of evidence is a procedural matter.
I believe the error in not following the requirements of CrRLJ 3.1 resulted in prejudicial harm to the accused persons. I would conclude that suppression of the evidence is the proper remedy.
Templeton Respondents and Dunn Petitioners had a statutory right to submit or not to submit to the blood alcohol (BAC) breath tests. If their right had not been improperly qualified under the ‘Washington State Patrol DUI Arrest Report” form, they would have known they were entitled to consult an attorney before administration of the breath alcohol test so that their attorneys could advise them of the best course of action whether to take or refuse to take the breath alcohol test. When the right to counsel of *224Templeton Respondents and Dunn Petitioners was improperly limited by the officers, they were prejudiced by deprivation of possible helpful advice from their attorneys. Violation of CrRLJ 3.1 thus resulted in prejudicial harm that requires suppression of the BAC Verifier DataMaster results to protect the rights of the accused persons to a fair trial.
I would therefore affirm the Court of Appeals, Division One, in State v. Templeton, which held promulgation of CrRLJ 3.1 to be a proper exercise of the Supreme Court’s rule-making powers, and that the advice of the right to counsel given the accused persons by the officers did not meet the requirements of CrRLJ 3.1 which constituted prejudicial error requiring suppression of the BAC breath test results. I would reverse the Court of Appeals, Division Two, in State v. Dunn, which held that inadequate CrRLJ 3.1 warnings given to the accused persons by the officers was harmless error not requiring suppression of the BAC breath test results.
Johnson, Sanders, and Chambers, JJ., concur with Smith, J.