(dissenting) — I must dissent from my colleagues. The defendant should be informed that he may request access to counsel before taking the Breathalyzer.
The Sixth Amendment right to counsel attaches at any critical stage involving actual confrontation between the accused and representatives of the State. Massiah v. United States, 377 U.S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199 (1964). Although the Sixth Amendment does not generally apply to the taking of physical evidence, State v. Fitzsimmons, 93 Wn.2d 436, 610 P.2d 893 (1980), indicated the implied consent statute "forcefully demonstrates the *265need to allow the defendant access to counsel, if desired, to assist in making the decision whether to submit to chemical sobriety tests". Fitzsimmons, supra at 448. The court further noted:
[T]he State has acknowledged the critical nature of the requested chemical sobriety testing and has required the defendant to make a decision regarding testing that could often be better made with the advice of an attorney.
(Italics mine.) Fitzsimmons, supra at 449. The practicalities of a query regarding a defendant's desire to have access to counsel may at times seem futile; however, in situations such as we face here, it is critically meaningful. An inquiry by police officers regarding access to counsel will allow the defendant to receive legal advice, should he or she desire, before making a decision whether to be given a test to determine alcohol content in the blood. Mr. Wurm should not be penalized merely because he failed to request access to an attorney, when such a request might have been made had he been aware that access was available. Fitzsimmons, supra.
The Sixth Amendment provides in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." (Italics mine.) The Supreme Court construed the Sixth Amendment provision to "apply to critical stages of the proceeding ..." United States v. Wade, 388 U.S. 218, 224, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967). See also Gilbert v. California, 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951 (1967). In Fitzsimmons, supra, the court noted a more recent statement by the United States Supreme Court regarding the Sixth Amendment right to counsel:
[I]n United States v. Ash, 413 U.S. 300, 37 L. Ed. 2d 619, 93 S. Ct. 2568 (1973), the Supreme Court stated that the Sixth Amendment right to counsel extended only to events during which "the accused required aid in coping with legal problems or assistance in meeting his adversary", United States v. Ash, supra at 313, where "the accused was confronted, just as at trial, by the procedural system, or by his expert adversary, or by both." *266United States v. Ash, supra at 310. The time immediately after arrest and charging for driving while under the influence, when the defendant is still in custody and must immediately make the decision whether to submit to the Breathalyzer, arrange for further testing and observation of his mental state or forever lose any defense, is certainly such an event. Only by acknowledging the defendant's right of access to counsel can we insure he is meaningfully assisted in his defense.
... We reiterate the importance of intoxication as an element of the offense in requiring a rule that allows the defendant immediate access to an attorney.
(Italics mine.) Fitzsimmons, supra at 445. The majority's interpretation of Fitzsimmons makes the latter a nullity. My reading of Fitzsimmons indicates the implied consent statute has no effect on the right to counsel at this stage of the proceeding. Fitzsimmons, supra at 449. Cf. State ex rel. Juckett v. Evergreen District Court, 32 Wn. App. 49, 645 P.2d 734 (1982) (no right to access unless requested).
The intent of the implied consent law is to inferentially coerce the driver suspected of driving under the influence into consenting to chemical testing or face a mandatory 6-month revocation of a driver's license.4 The evidence may later be used in a criminal proceeding.5 Consequently, the driver must make a vital decision which could severely impact his or her ability to pursue a chosen livelihood since occupational permits cannot be granted after revocation of *267a driver's license pursuant to RCW 46.20.311(2). See also RCW 46.20.391(4).6
As noted in Fitzsimmons, supra, the State has acknowledged the critical nature of chemical sobriety testing which requires the defendant to make what may later be a devastating decision. Under this rationale, I find no valid reason why such evidence-gathering by the prosecution should be any less subject to scrutiny than other constitutionally protected areas, i.e., lineups or custodial interrogations.
In United States v. Wade, supra, the Court noted the necessity of counsel at every critical stage of the proceeding in order to preserve a fair trial. In defining a critical stage, courts must "analyze whether potential . . . prejudice to defendant's rights inheres in the . . . confrontation ..." Wade, at 227. Although the Court in Wade indicated that scientific testing did not rise to a level of a critical stage, it was not presented with a case whereby chemical testing to determine alcoholic content is statutorily determinative of guilt in a present-day prosecution for driving while intoxicated. RCW 46.61.502 states in part:
A person is guilty of driving while under the influence of intoxicating liquor or any drug if he drives a vehicle within this state while:
(1) He has 0.10 percent or more by weight of alcohol in his blood as shown by chemical analysis of his breath...[7]
*268(Italics mine.) Thus, the decision to acquiesce in the administration of a Breathalyzer test is meaningful to the driver and is obviously "better made with the advice of an attorney". Fitzsimmons, supra at 449.
An equally important basis for dissent is the potential for confusion on the part of drivers similarly situated with Mr. Wurm. Under a common procedure, Miranda warnings in pertinent part were signed at the station:
3.1 have the right at this time to an attorney of my own choosing and have him present during questioning and the making of any statements;. . .
(Italics mine.) The majority states, "He was then asked to submit to a Breathalyzer test". Mr. Wurm had just been informed of his right to an attorney during any "questioning" or the "making of any statements". This, of course, refers to testimonial evidence or verbal communication.* ***8 It would not be unreasonable for him to conclude that access to an attorney did not attach at the Breathalyzer stage. Obviously, the breath test is scientific as opposed to testimonial evidence. Consequently, unless a driver knew he would not be denied access to an attorney if requested (under Fitzsimmons), he or she could subjectively feel access is entirely precluded based on the verbiage contained in the previously signed Miranda warning. If access is to be made available on request, why not ask the driver if he wishes to speak with an attorney before making the decision? The Breathalyzer test should not be given in a "gamesmanship" atmosphere of "hide-and-seek" — there is much to be lost by a driver who does not know the "rules".
*269For the foregoing reasons, and in the interest of fairness, where the chemical testing procedures are not unreasonably delayed, a driver should be offered the benefit of legal advice prior to testing.
Reconsideration denied July 16, 1982.
Review granted by Supreme Court October 22, 1982.
In Bell v. Burson, 402 U.S. 535, 539, 29 L. Ed. 2d 90, 91 S. Ct. 1586 (1971), the Supreme Court noted a driver's license is no longer a luxury or mere privilege but a necessity in earning a livelihood:
Once [driver's] licenses are issued, as in petitioner's case, their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.
(Citations omitted.)
If the driver was involved in an accident resulting in death or serious injury he or she may be faced with serious criminal proceedings in which the test results could be important evidence against the driver. See, e.g., RCW 46.61.520; RCW 9A.36.050.
RCW 46.20.391(4) states:
" (4) The director shall cancel an occupational driver's license upon receipt of notice that the holder thereof has been convicted of operating a motor vehicle in violation of its restrictions, or of an offense which pursuant to chapter 46.20 RCW would warrant suspension or revocation of a regular driver's license. Such cancellation shall be effective as of the date of such conviction, and shall continue with the same force and effect as any suspension or revocation under this title."
Additionally, RCW 46.61.515 states in part:
"(1) Every person who is convicted of a violation of RCW 46.61.502 . . . shall be punished by imprisonment for not less than one day nor more than one year, and by a fine of not more than five hundred dollars. . . .
"(2) On a second or subsequent conviction under RCW 46.61.502 . . . within a five year period a person shall be punished by imprisonment for not less than seven days nor more than one year and by a fine not more than one thousand *268dollars. ... If such person at the time of a second or subsequent conviction is without a license or permit because of a previous suspension or revocation, the minimum mandatory sentence shall be ninety days in jail and a two hundred dollar fine. The penalty so imposed shall not be suspended or deferred."
The majority relies on State v. Franco, 96 Wn.2d 816, 639 P.2d 1320 (1982). That case merely indicated that a breath sample taken from a DWI suspect is not "testimonial" in nature. Franco, supra at 825. The court ruled, therefore, that the implied consent law was not violative of the Fifth Amendment. I view the Breathalyzer as a "critical stage" under the Sixth Amendment.