(concurring; dissenting) — I concur with the holding in the Ponce case and dissent in the Ozuna case.
The issue is rather simple. May a defendant in a habitual traffic offender proceeding attack the validity of one of the underlying traffic convictions collaterally on the basis that his right to counsel had been denied in the earlier proceeding?
There are several principles underlying the answer to that question. First, a collateral attack is permissible only if the judgment in the earlier proceeding is absolutely void. Such a judgment is void only where the court lacked jurisdiction of the party or the subject matter or lacked the inherent power to enter the particular order involved. Bresolin v. Morris, 86 Wn.2d 241, 245, 543 P.2d 325 (1975). No such deficiency is present here.
Second, as conceded by the majority, the rule of McInturf v. Horton, 85 Wn.2d 704, 538 P.2d 499 (1975), is not available in a collateral attack.
Third, for purposes of further action in criminal proceedings, the void only rule has been modified to allow a collateral attack for denial of a fundamental constitutional right, such as the right to counsel. State v. Boyd, 21 Wn. App. 465, 478, 586 P.2d 878 (1978).
None of the foregoing mandates the majority's holding in a civil proceeding like this habitual traffic offender action. Our holding in State v. Francis, 85 Wn.2d 894, 540 P.2d 421 (1975), is dispositive. There we said at page 896:
Here, however, any uncounseled conviction in any appellant's driving history is too far removed to invalidate the habitual traffic offender proceeding. We also feel obliged to give serious weight to the very substantial State interest involved. The program of dealing with traffic offenders would be hampered were we to apply Argersinger [Argersinger v. Hamlin, 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006 (1972)] retroactively in all habitual traffic offender actions.
(Footnote omitted.) That Francis dealt with retroactive application of Argersinger is not a persuasive distinction. *542The proceeding is still civil. For this purpose, the judgment is not void. The vital interest of the State is still present.
The majority opinion opens wide the door to the abuse and ultimate defeat of the purpose of the habitual traffic offenders act. Many of the convictions upon which the proceedings will rely will have been obtained in courts that do not maintain a record. Inherent in every proceeding will be the factual dispute as to whether the defendant was advised of his right to counsel, waiver of that right, and collateral issues which, if tried, would at best be unsatisfactorily resolved by testimony of the participants. The constitutional rights of the traffic offender arise in the traffic proceeding and their applicability should be raised or attacked therein. This civil proceeding is not the place to resolve such questions.
I would hold that State v. Francis, supra, supported by State v. Petersen, 16 Wn. App. 77, 553 P.2d 1110 (1976), is controlling, and would deny the collateral attack and affirm the Court of Appeals.
Rosellini, Wright, and Williams, JJ., concur with Brachtenbach, J.