¶41 (concurring) — I agree with the majority that Nicholas Mayer’s conviction should be affirmed. I agree that the record contains overwhelming evidence of his guilt. This holds true whether or not his statements to police are considered. I part company with the majority concerning the efficacy of the Miranda9 warnings given in this case. In my view, considering the totality of the circumstances, Mayer validly waived his Miranda rights.
ANALYSIS
¶42 The right to counsel under our state constitution and the federal constitution is the same. State v. Earls, 116 Wn.2d 364, 378, 805 P.2d 211 (1991). The Fifth and Fourteenth Amendments’ prohibition against compelled self-incrimination requires that custodial interrogation be preceded by advice to the accused that he has the right to remain silent and the right to the presence of an attorney. Id. (citing Miranda, 384 U.S. at 479); U.S. Const, amends. V, XIV. The person being interrogated may validly waive the right to counsel. 116 Wn.2d at 378 (citing Miranda, 384 U.S. at 475). If such questioning takes place without an attorney present, the State has the heavy burden of establishing the *570defendant’s waiver of his privilege against self-incrimination and his right to retained or appointed counsel. Id. at 378-79 (citing Miranda, 384 U.S. at 475). The State’s burden is met if it can prove the voluntariness of the statement by a preponderance of the evidence. Id. at 379 (citing Lego v. Twomey, 404 U.S. 477, 486-87, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972)). “To be valid, the waiver must be a voluntary, knowing, and intelligent relinquishment of a known right.” Id. (citing Edwards v. Arizona, 451 U.S. 477, 482, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981)). “The determination of whether or not a valid waiver was made depends ‘upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ ” Id. (internal quotation marks omitted) (quoting Edwards, 451 U.S. at 482). Restated, we consider the totality of the circumstances.
“[T]he determination whether statements obtained during custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance of counsel.”
State v. Unga, 165 Wn.2d 95, 100, 196 P.3d 645 (2008) (alteration in original) (quoting Fare v. Michael C., 442 U.S. 707, 724-25, 99 S. Ct. 2560, 61 L. Ed. 2d 197 (1979)). Included in such a “totality” assessment are the defendant’s “age, experience, intelligence, education, and background; whether he or she has the capacity to understand any warnings given and his or her Fifth Amendment rights; and the consequences of waiving these rights.” Id. at 103.
¶43 Here, the majority parses through the language of the warning that Mayer received and the subsequent statements police made to Mayer in response to his questions. While the majority’s consideration of the language used is not improper, the majority ignores other considerations that play a crucial role in properly assessing Mayer’s waiver, particularly his background and experience. As the *571Supreme Court has explained, “Reviewing courts . . . need not examine Miranda warnings as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably ‘conve [y] to [a suspect] his rights as required by Miranda.’ ” Duckworth v. Eagan, 492 U.S. 195, 203, 109 S. Ct. 2875, 106 L. Ed. 2d 166 (1989) (second and third alterations in original) (quoting California v. Prysock, 453 U.S. 355, 361, 101 S. Ct. 2806, 69 L. Ed. 2d 696 (1981)).
¶44 In my view, as was the case in Duckworth, the warnings given to Mayer “touched all of the bases required by Miranda” Id. The police read Mayer his Miranda rights twice: once before the taped interview and again on the recording of the interview after Mayer had agreed to such recording. Each time, police informed Mayer that he had the right to remain silent and that anything he said could be used against him in court. 1 Verbatim Report of Proceedings (VRP) at 74, 79. Police further stated,
“You have the right at this time to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before questioning if you wish. You can decide at any time to exercise these rights and not answer any questions or make any statements.”
Id. at 74-75, 79 (emphasis added).
¶45 This case is controlled by Duckworth, where a comparable Miranda warning was held to be sufficient. See Duckworth, 492 U.S. at 203. Here, after the first Miranda warning, Mayer affirmatively acknowledged that he understood “ ‘each of these rights.’ ” 1 VRP at 75. After the second Miranda warning, which was read to him on the recording, he again acknowledged that he understood “each of these rights” as described above. Id. at 79. Mayer then inquired how he could go about getting appointed counsel “[i]/ I wanted an attorney and I can’t afford one.” Id. (emphasis added). Police then answered (somewhat unartfully) that if he were arrested and taken to jail, and appeared before a *572judge, and if he were not able to afford an attorney the judge would appoint him a lawyer. See id. Mayer acknowledged that he understood. Id. After addressing Mayer’s question about the process for acquiring court appointed counsel, police continued the interview. Police again asked Mayer if he understood his rights; he acknowledged that he did. Id. at 80. Police then twice asked Mayer, “keeping your rights in mind,” if Mayer wanted to continue the interview and discuss the robbery. Id. He answered affirmatively. Id. Over the course of the following half-hour interview, Mayer discussed his role in the robbery. He never indicated that he wanted to stop the interview, and he never asked for an attorney during questioning. Id. at 81-82.
¶46 In Duckworth, the warning at issue described defendant’s right to counsel before police asked him questions and informed him that he could stop answering questions at any time until he talked to a lawyer. See 492 U.S. at 198, 205. The warning also included an advisement that a lawyer “ ‘will be appointed for you, if you wish, if and when you go to court.’ ” Id. at 198 (emphasis omitted). This language in the Duckworth advisement anticipated and answered the question that Mayer asked police at his interview regarding the process for getting appointed counsel. See id.; 1 VRP at 79. The Duckworth Court distinguished some language appearing in its earlier Prysock opinion, which suggested that “Miranda warnings would not be sufficient ‘if the reference to the right to appointed counsel was linked [to a] future point in time after the police interrogation.’ ” Duckworth, 492 U.S. at 204-05 (first emphasis added) (alteration in original) (quoting Prysock, 453 U.S. at 360). The Duckworth Court explained that “the vice referred to in Prysock was that such warnings would not apprise the accused of his right to have an attorney present if he chose to answer questions.” Id. The Court held that the above described warnings did not suffer from such defect. Id. The same is true here. As in Duck-worth, the warnings, in their totality, satisfied Miranda. Id.
*573f 47 The Duckworth Court reiterated that “ ‘the “rigidity” of Miranda [does not] exten[d] to the'precise formulation of the warnings given a criminal defendant,’ and that ‘no talismanic incantation [is] required to satisfy its strictures.’ ” Id. at 202-03 (alterations in original) (quoting Prysock, 453 U.S. at 359). Miranda requires “only that the suspect be informed ... that he has the right to an attorney before and during questioning, and that an attorney would be appointed for him if he could not afford one.” Id. at 204. Accordingly, Miranda requires that “police not question a suspect unless he waives his right to counsel.” Id. (emphasis added). Both in Duckworth and in the present case, the defendant did so. Id.
¶48 Further, the record of the suppression hearing indicates that Mayer had a substantial criminal history with multiple arrests and convictions going back to 2003. On cross-examination, he admitted that he had been arrested multiple times in 2003, 2006, 2007, 2008, and 2011. See 1 VBP at 155-57. Mayer admitted that “[a]s far as [he could] remember,” each time he had been arrested he had been read his Miranda rights; that he had been advised of his Miranda rights “at least nine times” prior to receiving the warnings at issue here; and that he was “very familiar with Miranda warnings.” Id. at 157. Considering the totality of the circumstances, including Mayer’s substantial experience, background, and familiarity with Miranda warnings, it is simply implausible that he was confused by the rights advisement given here or that he was not clear about his right to an attorney during questioning. In my view, there was no Miranda violation here.
¶49 Finally, as we noted in Earls, “[defendant] was aware of his rights and the State’s intention to use his statements against him. Furthermore, his decision not to invoke those rights was not induced by threat or promise. Thus, his waiver was valid as a matter of law.” Earls, 116 Wn.2d at 380 (citing Moran v. Burbine, 475 U.S. 412, 422-23, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986)). The same *574is true here. For the reasons discussed, Mayer’s interview statements to police were properly admitted at trial. I would affirm his conviction and concur in the result on this basis.
Yu, J., concurs with Madsen, C.J.Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).