(concurring; dissenting) — I concur with the majority as to Ozuna and dissent regarding Ponce. I would reverse both convictions.
Each defendant was found to be a habitual traffic offender by virtue of the admission as evidence of three prior criminal traffic convictions over a period of less than 5 years. The mandatory consequence is that each defendant may not drive for a period of 5 years. RCW 46.65.060. If either does drive in violation of such status, he may be jailed for a period of up to 1 year. The . majority opinion sets forth the facts concerning the stipulation as to the indigency of both defendants and the failure of the trial *543court to grant the defendants counsel or to advise them of their rights to such.
The majority concludes that the constitutional right to counsel attaches only when actual imprisonment results rather than under circumstances in which imprisonment is merely authorized, and that since Ozuna served a day in jail under one of the subject traffic convictions, such uncounseled conviction was void and collaterally attackable in the habitual traffic offender proceedings. Ponce is denied the right to challenge such convictions because he served no jail term.
Jail time was authorized as to each traffic violation of Ozuna and Ponce. I would hold that under article 1, section 22 of the Washington State Constitution all uncounseled traffic convictions in which imprisonment is authorized are either void or unworthy of evidentiary force in habitual traffic offender proceedings and may be challenged by collateral attack in such proceedings. See Scott v. Illinois, 440 U.S. 367, 59 L. Ed. 2d 383, 390, 99 S. Ct. 1158 (1979), (Brennan, Marshall, and Stevens, JJ., dissenting). Such a rule and the analysis supporting it make good sense, are predictable, workable and, above all, fair.
The sixth amendment to the United States Constitution states:
In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.
(Italics mine.) The principle applies to every state of the union. Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, 93 A.L.R.2d 733 (1963).
Article 1, section 22 of the Washington State Constitution declares a similar right to counsel.
Consistent with this state constitutional provision this court promulgated JCrR 2.11(a)(1):
The right to counsel shall extend to all criminal proceedings for offenses punishable by loss of liberty regardless of their denomination as felonies, misdemeanors, or otherwise.
*544(Italics mine.) The court unqualifiedly, clearly, and soundly confirmed the wisdom of that rule in McInturf v. Horton, 85 Wn.2d 704, 583 P.2d 499 (1975).
A key principle closely touching the facts before us was set forth in the landmark case Argersinger v. Hamlin, 407 U.S. 25, 34, 32 L. Ed. 2d 530, 92 S. Ct. 2006 (1972):
Beyond the problems of trials and appeals is that of the guilty plea, a problem which looms large in misdemeanor as well as in felony cases. Counsel is needed so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution.
In addition, the volume of misdemeanor cases, far greater in number than felony prosecutions, may create an obsession for speedy dispositions, regardless of the fairness of the result.
In concurring with the result in Argersinger, Justice Powell foresaw the plight in which Ozuna and Ponce now find themselves:
There may well be an unfair and unequal treatment of individual defendants, depending on whether the individual judge has determined in advance to leave open the option of imprisonment. Thus an accused indigent would be entitled in some courts to counsel, while in other courts in the same jurisdiction an indigent accused of the same offense would have no counsel. Since the services of counsel may be essential to a fair trial even in cases in which no jail sentence is imposed, the results of this type of pretrial judgment could be arbitrary and discriminatory.
(Italics mine.) Argersinger, at 54.
Serious consequences also may result from convictions not punishable by imprisonment. Stigma may attach to a drunken-driving conviction or a hit-and-run escapade. Losing one's driver's license is more serious for some individuals than a brief stay in jail. . . . When the deprivation of property rights and interests is of sufficient consequence, denying the assistance of counsel to indigents who are incapable of defending themselves is a denial of due process.
(Italics mine.) Argersinger, at 48.
*545I agree. This court has enunciated that the right to counsel is a cornerstone of the judicial process when vital interests of each citizen are involved. I regret the majority's apparent withdrawal from what I consider to be the philosophically sound position taken by the court in McInturf v. Horton, supra.
Moreover, I believe there are valid reasons for making distinctions between rules applicable in a habitual offender proceeding and those applicable in cases in which a defendant fails to appeal from a conviction involving known consequences and later challenges the conviction. In a habitual offender proceeding, special attention should be given to the fact that the underlying convictions may not have been appealed, not only because the indigent defendant lacked counsel to assist him, but also because at the time of the earlier convictions their known consequences, namely, fines or short jail terms, were not seen as overly burdensome. When, however, the defendant is later faced with the revocation of his driver's license for a 5-year period, the seriousness of that deprivation may cause him to be more active in his own defense and to challenge the earlier convictions. Just because a defendant did not challenge his earlier convictions at the time they were entered should not increase their validity or render them invulnerable to collateral attack.
I would therefore allow Ponce as well as Ozuna the right to challenge collaterally the applicability of the underlying traffic convictions in the habitual traffic offender proceedings and would reverse both convictions. Such an interpretation of a state constitutional provision on independent state grounds is not without precedent. See State v. Robinson, 117 N.H. 496, 374 A.2d 953 (1977).
Judge Jerome M. Johnson is serving as a judge pro tempore of the Supreme Court pursuant to Const. art. 4, § 2A (amendment 38).