(dissenting)—I dissent. The majority overrules the holding of our unanimous decision in State v. Fitzsimmons, 93 Wn.2d 436, 610 P.2d 893, 18 A.L.R.4th 690, vacated and remanded, 449 U.S. 977, 66 L. Ed. 2d 240, 101 S. Ct. 390, aff'd on remand, 94 Wn.2d 858, 620 P.2d 999 (1980), and much of Tacoma v. Heater, 67 Wn.2d 733, 409 P.2d 867 (1966). Our unanimous decision in State v. Prok, 107 Wn.2d 153, 727 P.2d 652 (1986) distinguished Fitzsimmons, but did not overrule it. In cases where the right to counsel attaches prior to arrival at the police station, dismissal is the appropriate remedy for denial of that right. State v. Fitzsimmons, supra. In other cases, suppression may suffice. State v. Prok, supra. The opinion I authored for a unanimous court in Prok does not justify overruling either Heater or Fitzsimmons.
In Heater, we held that the right to counsel in a DWI case attaches no later than the moment when the police charge the defendant with the offense. Majority, at 141 (citing Heater, 67 Wn.2d at 739). We reasoned that this moment was a critical stage of the proceedings, because the "evidence of intoxication dissipates with the passage of *148time." Heater, at 739. In particular, the failure to allow the defendant to immediately notify counsel deprived him of the opportunity to have a doctor administer a blood test at the moment of arrest. We reasoned that denial of the right to counsel at this critical stage is inherently prejudicial because it deprives the defendant of the ability to secure the most convincing kind of evidence of his sobriety. Heater, at 740. Accordingly, we dismissed the action against Heater. Heater, at 741.
In Fitzsimmons, we reaffirmed the holding that the right to counsel attached immediately after the moment of arrest and the rationale underlying it. Fitzsimmons, 93 Wn.2d at 442-43. We subsequently declared that Fitzsimmons was not of federal constitutional dimension, but that the rationale supporting our constitutional decision in Heater supported our interpretation of the court rule in Fitzsimmons. Fitzsimmons, 94 Wn.2d 858 (on remand). We also explained that Heater was based in part on state constitutional grounds. Fitzsimmons, 94 Wn.2d at 859. In Fitzsimmons, we held that the remedy for a violation of the right to counsel at the time of arrest is dismissal, as we had in Heater. Fitzsimmons, 93 Wn.2d at 451. In both Fitzsimmons and Heater, the right to counsel attached before the defendant arrived at the jail.
Prok presented a situation different from that present in Heater and Fitzsimmons. In the Prok case, the defendant passed out before being taken to the police station. Because of this the police could not have advised Prok of his right to counsel prior to Prok's arrival at the police station. Prok, at 156-57. Accordingly, we concluded that the right to counsel did not attach until after arrival at the police station. Prok, at 157.
We unanimously agreed that the fact that the right to counsel did not attach until after arrival at the police station distinguished this case from Heater and Fitzsimmons, because in Heater and Fitzsimmons the right attached upon arrest on the highway. Prok, at 157. In this case, the right to counsel attached upon arrest on the highway. *149Majority, at 139. Accordingly, Fitzsimmons governs this case and requires dismissal of the charges.
The rationales underlying dismissal in Heater and Fitzsimmons support dismissal more strongly when the right to counsel attaches on the highway than when the right attaches after arrival at the jail. If the defendant passes out and makes it impossible to advise him of the right to counsel on the highway, the defendant, not the police, deprives the defendant's lawyer of the opportunity to have an immediate blood alcohol test and to interview witnesses on the scene. Therefore, the need to dismiss in order to protect defense counsel's opportunities is substantially less.
The majority now finds the distinction we found tenable in Prok untenable. The majority's theory that the distinction drawn in Prok was untenable cannot justify overruling Fitzsimmons, although it might justify overruling Prok.
We cannot overrule Fitzsimmons, because doing so conflicts with the rationale supporting the court rule at issue in this case. We explained in Heater that in DWI cases the right to counsel attaches upon arrest on the highway, because the evidence of drunkenness dissipates so rapidly. That justified identifying the moment of arrest as a critical stage of proceedings to which the right to counsel attaches. This requirement that the right to counsel attach at the moment of arrest has since been incorporated in court rules. State ex rel. Juckett v. Evergreen Dist. Court, 100 Wn.2d 824, 830-31, 675 P.2d 599 (1984) (right to counsel attaches upon arrest under former JCrR 2.11(c)).
We must provide a remedy consistent with the case developing the rationale which now supports our court rules, Tacoma v. Heater, supra. As we explained in Heater, depriving defense counsel of the opportunity to obtain the best evidence of sobriety through a blood test is inherently prejudicial and results in dismissal. The extraordinary remedy of dismissal of charges is appropriate when there has been prejudice to the rights of the accused which materially affected his or her rights to a fair trial. Majority, at 144. Deprivation of the right of counsel at the moment of *150arrest in a DWI case is inherently prejudicial because it deprives defense counsel of the opportunity to get an immediate blood test.
The majority’s reasons for overruling Fitzsimmons and a major part of Heater are not persuasive. We may not eviscerate the right of counsel under the court rule to accommodate the Legislature's legitimate desire to punish drunk drivers. Cf. majority, at 146-47. Defendants will never go free under the rule unless the police fail to follow a clear rule requiring them to advise defendants of their right to counsel upon arrest.
Nor should we, at this late date, reconsider our decision in Heater, which underlies the court rule we have followed for many years. The majority argues that denial of the right to counsel does not necessarily result in the loss of all exculpatory evidence. Majority, at 141, 145 (citing Heater, at 767 (Hamilton, J., dissenting)). The Heater majority did not deny that this contention of the dissent was correct. But we insisted, in Heater, that the loss of an opportunity to get an independent blood alcohol test was of paramount importance. Heater, at 739-41. This justified both the holding that the right to counsel attaches upon arrest and the holding, followed in Fitzsimmons and the Court of Appeals in this case, that the remedy for violation of the rule is dismissal. Suppression of the State's evidence does not cure the failure to allow the defendant the opportunity to get exculpatory evidence which dissipates shortly after arrest. Cf. majority, at 145.
The majority claims that our decision that Fitzsimmons interprets a court rule and the state constitution, rather than the Sixth Amendment, somehow undermines its reasoning. Majority, at 144. Yet the rule given constitutional status in Heater is the same rule now embodied in our court rule. The reasoning for the rule does not lose its force because the source of the right changes.
Our holding in Prok is too narrow to justify overruling Fitzsimmons. In Prok, the state trooper did not violate the rule at issue in Heater, Fitzsimmons, and in this case, *151former JCrR 2.11(c)(2), current CrRLJ 3.1(c)(2). Rather, the trooper violated a phrase of JCrR 2.11(c)(1) requiring advisement of the right to counsel "'in words easily understood'". Prok, at 155. Accordingly, our conclusion that dismissal is inappropriate where there is credible untainted evidence acquired prior to the violation must be confined to violations of the rule at issue in that case. "[GJeneral expressions in every opinion are to be confined to the facts then before the court" and are "limited in their relation to the case then decided and to the points actually involved." Peterson v. Hagan, 56 Wn.2d 48, 53, 351 P.2d 127 (1960) (citing Cohens v. Virginia, 19 U.S. 264, 5 L. Ed. 257 (1821) and five of our cases). We also distinguished Fitzsimmons, thereby clearly indicating that we did not intend to overrule it. The particular distinction we drew indicated that our holding in Prok would be confined to cases where special circumstances kept the right to counsel from attaching prior to arrival at the jail.
I would therefore reaffirm Heater and Fitzsimmons, the cases governing administration of CrRLJ 3.1(c)(2) prior to arrival at the station. The underpinning for the rule requires no less. I would, however, overrule Evergreen, insofar as it implied that defendant Marquez was not entitled to dismissal. See Evergreen, 100 Wn.2d at 831. In Evergreen, we ordered suppression of the evidence obtained after denial of the right to counsel without discussing dismissal or the remedial holding of Heater or Fitzsimmons. The doubt created by this disposition led to the difficulties we experienced in Prok. See State v. Prok, 42 Wn. App. 166, 709 P.2d 401 (1985) (majority and dissent disagreeing about the implications of Evergreen), rev'd, 107 Wn.2d 153, 727 P.2d 652 (1986). The majority's assertion that Prok is in some tension with Fitzsimmons has some merit. Since the facts of this case fall squarely within the remedial rule established in Fitzsimmons and Heater, I see no need to overrule Prok in this case. Properly understood, Prok has no bearing on this case.
*152We should dismiss the case in accordance with our holdings in Heater and Fitzsimmons.