— The defendant was involved in a minor traffic accident. The officers who investigated the accident determined that the defendant was under the influence of intoxicants and took him to the city jail under arrest. The defendant denied that he was under the influence of intoxicating liquor. Upon arrival at the jail, the defendant requested permission to telephone his attorney, but was denied the right to do so.
The police officers then proceeded to administer certain physical and coordination tests to the defendant to ascertain his sobriety. The defendant refused to take a chemical sobriety test. He repeatedly renewed his request to telephone his attorney, but was not permitted to do so because the *735police department’s regulations permit officers to deny to a person charged with an offense involving intoxication the right to make a telephone call until after the expiration of 4 hours following his arrest.1 Immediately after the tests were administered, the defendant was charged with the offense of driving while under the influence of liquor. He was not permitted to call his attorney until 4 a.m. on the morning following his arrest. The defendant’s attorney stated that if he had been called he would have arranged for a blood test to determine the defendant’s condition.
A jury found the defendant guilty as charged, and he appeals from the judgment entered on the verdict.
The issue to be determined on this appeal is: Is the denial of a request for permission to contact counsel as soon as a person is charged with a crime involving the element of intoxication, the denial of a constitutional right resulting in irreparable prejudice to his defense?
In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel . . . . Const. art. 1, § 22 (amendment 10).
In all criminal prosecutions, the accused shall . . . have the assistance of counsel for his defense. U.S. Const. amend. 6.
In Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 Sup. Ct. 792, it was held that the following portion of the Sixth Amendment was incorporated into the due process clause of the Fourteenth Amendment, and is therefore binding upon the states:
*736In all criminal prosecutions the accused shall enjoy the right ... to have the assistance of counsel for his defense.
We have followed the rule that where the language of the state constitution is similar to that of the federal constitution, the language of the state constitutional provision should receive the same definition and interpretation as that which has been given to a like provision in the federal constitution by the United States Supreme Court. State v. Schoel, 54 Wn.2d 388, 341 P.2d 481. Consequently, the Gideon case, supra, means that every defendant has a constitutional right to counsel in all criminal prosecutions. The court made no distinction between misdemeanors and felonies insofar as the applicability of this provision is concerned.
A defendant’s right to be heard through his own counsel is unqualified. Chandler v. Fretag, 348 U.S. 3, 99 L. Ed. 4, 75 Sup. Ct. 1.
Prior to the Gideon case, supra, the Sixth Amendment was not considered a part of the Fourteenth Amendment. The Supreme Court applied the “fundamental fair trial” test to ascertain whether a conviction should be set aside where the defendant was deprived of counsel. In Betts v. Brady, 316 U.S. 455, 86 L. Ed. 1595, 62 Sup. Ct. 12522, the court stated:
The Fourteenth Amendment prohibits the conviction and incarceration of one whose trial is offensive to the common and fundamental ideas of fairness and right, and while want of counsel in a particular case may result in a conviction lacking in such fundamental fairness, we cannot say that the Amendment embodies an inexorable command that no trial for any offense, or in any court, .can be fairly conducted and justice accorded a defendant who is not represented by counsel.
In Crooker v. California, 357 U.S. 433, 2 L. Ed. 2d 1448, 78 Sup. Ct. 1287 (followed in Cicenia v. LaGay, 357 U. S. 504, 2 L. Ed. 2d 1523, 78 Sup. Ct. 1297, and Culombe v. Connecticut, 367 U.S. 568, 6 L. Ed. 2d 1037, 81 Sup. Ct. 1860), *737the Supreme Court followed the rule in Betts v. Brady, supra, in finding that the “fair trial” concept had not been violated.
The “fair trial” rule created more problems than it solved. It encouraged prisoners throughout the country to ask for reviews by habeas corpus, in the hope that their cases would be reversed.
Betts v. Brady, supra, placed upon trial courts the burden of anticipating what view an appellate court might take in regard to the “common and fundamental ideas of fairness and right” in each case; and, the result was that many convictions were set aside in habeas corpus proceedings. This indicated that a definitive rule such as that laid down in the Gideon case, should be formulated to enable trial courts to enter judgments that would not be open to attack by habeas corpus on this ground.
Since the Sixth Amendment is now part of the Fourteenth Amendment, the “fair trial” rule is not determinative of the issue.
In Hamilton v. Alabama, 368 U.S. 52, 7 L. Ed. 2d 114, 82 Sup. Ct. 157, a new test was devised to ascertain when the right to counsel attaches. The right arises “at any critical stage in a criminal proceeding.” In White v. Maryland, 373 U.S. 59, 10 L. Ed. 2d 193, 83 Sup. Ct. 1050, the Supreme Court held that a preliminary hearing was a “critical stage” in the Maryland proceeding. The reason for the court’s holding appeared to be that a defendant’s plea of guilty entered in a preliminary hearing without counsel, could later in the trial on the merits be introduced in evidence against him. Thus, the court found that the prehminary hearing was a “critical stage” and required counsel to be appointed for the accused for a preliminary hearing.
This is in accord with Haynes v. Washington, 373 U.S. 503, 10 L. Ed. 2d 513, 83 Sup. Ct. 1336, where state officers held an accused incommunicado for 19 hours and refused to permit him to make a telephone call to his wife or lawyer until *738after he confessed. The Supreme Court held that his confession was involuntary and inadmissible under the due process clause of the Fourteenth Amendment.
In In re Pettit v. Rhay, 62 Wn.2d 515, 383 P.2d 889, we applied the rule of the Hamilton and White cases, supra, in granting a writ of habeas corpus and setting aside a conviction. We held that a “critical stage in a criminal proceeding” arose at a preliminary hearing where the defendant was denied counsel and the evidence adduced in the preliminary hearing was used to convict him of the charge.
An analogous case to the one at bar is State v. Krozel, 24 Conn. Supp. 266, 190 A.2d 61. A judgment of guilty was set aside, on the ground that the defendant had been denied his constitutional right to assistance of counsel. As in this case, the defendant was arrested on suspicion of driving while intoxicated. He was taken to the police barracks and given sobriety tests, after which he was charged with the offense. The defendant’s requests that he be allowed to call his attorney and his wife were denied. This refusal was based on the policy of the police department to forbid any accused suspected of intoxication to make a call or to use a telephone for a 4-hour period after his arrest.
Another case is In re Newbern, 175 Cal. App. 2d 862, 1 Cal. Rptr. 80, 78 A.L.R.2d 901. The defendant was discharged from custody where he was denied an opportunity to procure a blood test on a charge of intoxication and thus was prevented from obtaining evidence necessary to his defense. The court held that this was a denial of due process.
In Winston v. Commonwealth, 188 Va. 386, 49 S.E.2d 611, where the defendant was arrested and jailed for driving while intoxicated, and was not brought before the committing authority for 4% hours, and where the statute directed that the arresting officer produce the defendant “forthwith” before a committing authority, the charge had to be dismissed, the court stating at 395:
It is perfectly apparent, too, from what has been said, that as a result of his illegal detention the defendant has been forever deprived of material evidence which might have supported his claim that he was innocent of the *739charge under which he was held. According to the undisputed medical testimony, after the lapse of the time during which he was held in jail, a physical examination would have been useless and ineffectual.
And, also, at 397:
Since the opportunity denied the defendant of producing such evidence cannot be remedied at a new trial, we are of opinion that the judgment should be reversed and the prosecution dismissed.
In State v. Johnson, 87 N.J. Super. 195, 208 A.2d 444, the court held that detention of a suspected addict for 26 hours and refusal of his request to be examined by his own physician vitiates his conviction on a charge of being under the influence of narcotics. The court stated that:
the denial of an opportunity to be examined by a physician of his own choice, coupled with the 26-hour detention, constituted a deprivation of the right to defend his own liberty guaranteed by Article I, paragraph 1, of the New Jersey Constitution, ...
At what time was a “critical stage” reached in the defendant’s case? It was no later than the moment when, immediately after the police officers had conducted their tests for sobriety and had interrogated the defendant, they charged him with the offense.
The denial of counsel at this point prevented the defendant’s effective preparation for his defense to the charge against him. It was necessary for him to present evidence showing that he was not under the influence of intoxicating liquor at the time of his arrest. A most effective way to present such evidence would be through disinterested witnesses who could observe his condition soon after his arrest or after he had been booked for the crime, and by a blood test administered by a doctor. The evidence of intoxication dissipates with the passage of time. The 4-hour rule imposed by the police regulation recognizes that after 4 hours a person under the influence of intoxicating liquor will have reached a state of sobriety so that he is safe to be released, and may use a telephone.
*740The defendant had virtually no other way to obtain the necessary proof of his innocence.
The plaintiff urges that, because the defendant had access to other evidence tending to establish his innocence, the denial of his right to obtain the best evidence did not prejudice his defense. A jury is not likely to attach greater weight to the testimony of a friend of the defendant, whose inclination to aid him can be assumed, than to that of an arresting officer. It will not do to say that a person who is denied an opportunity to secure the most convincing kind of evidence has been deprived of a constitutional right but that such deprivation did not harm him.
It was essential to the effective preparation of his defense that the defendant be permitted to communicate with his attorney immediately after he was charged, in order to secure assistance of counsel in the pretrial period as required by the constitutional standards.
The Tacoma Police Department’s regulation is also in conflict with a statute of this state. It will be noted that, while it authorizes police officers to prohibit a person charged with an offense, an element of which is intoxication, from personally making a telephone call before 4 hours have elapsed after his arrest, it does not authorize them to prohibit anyone else from communicating in his behalf with his wife, friends, or attorney during that period. Even so, the regulation does not conform to the mandate of RCW 9.33.020 (5) which provides:
No officer or person having the custody and control of the body or liberty of any person under arrest, shall refuse permission to such arrested person to communicate with his friends or with an attorney, nor subject any person under arrest to any form of personal violence, intimidation, indignity or threats for the purpose of extorting from such person incriminating statements or a confession. Any person violating the provisions of this section shall be guilty of a misdemeanor. [1909 c 249 § 359 . . . .]
*741This statute is in harmony with the “critical stage” rule laid down by the Supreme Court in Hamilton v. Alabama, supra. The police chief of a city cannot by regulation repeal a statute passed by the state legislature; this power is reserved to the legislature only. Insofar as the police regulation is in conflict with the statute, it is void and of no effect.
Under the “critical stage” rule, the denial to the defendant of the assistance of his attorney after the officers had conducted their tests and questioning, violated his constitutional right to have counsel and due process3, and any conviction obtained thereafter was void.
Applying the former “fair trial” test, the same result would be achieved because here the defendant was prevented from obtaining evidence which, might tend to prove his innocence, and which evidence would have disappeared within 4 hours while he was held incommunicado. It clearly demonstrates prejudice.
The judgment is reversed and the action dismissed.
Hill, Donworth, Weaver, Hunter, and Hale, JJ., concur.
“Effective this date [October 1, 1954], every person arrested and placed in custody in the City Jail shall be afforded the opportunity as soon as possible to communicate by telephone with any person he desires as long as there is no toll charge.
“No Police Officer shall recommend to or influence any such person in custody in the selection of any person for him to call.
“No person charged with an offense, an element of which is intoxication, shall be denied the right of making such a telephone call after four hours have elapsed from the time of his arrest.
“(Note: Phone privileges shall not be extended to persons held under investigations, without consent of the Division concerned.)” Tacoma Police Department Regulation No. 46.
Betts v. Brady, supra, is overruled by Gideon v. Wainwright, supra.
It is interesting to note how the protection of constitutional rights has been strengthened by recent United States Supreme Court decisions. See, Eskridge v. Board of Prison Terms & Paroles, 357 U.S. 214, 2 L. Ed. 2d 1269, 78 Sup. Ct. 1061 (1958); Ross v. Schneckloth, 357 U.S. 575, 2 L. Ed. 2d 1547, 78 Sup. Ct. 1387 (1958); In re Woods v. Rhay, 357 U.S. 575, 2 L. Ed. 2d 1547, 78 Sup. Ct. 1387 (1958); Draper v. Washington, 372 U.S. 487, 9 L. Ed. 2d 899, 83 Sup. Ct. 774 (1963); Haynes v. Washington, 373 U.S. 503, 10 L. Ed. 2d 513, 83 Sup. Ct. 1336 (1963). And, in In re Horn v. State, 52 Wn.2d 613, 328 P.2d 159, on June 27, 1959, by order of the District Court, sitting in Yakima, Geither Horn was released on a Writ of Habeas Corpus; and by Laws of 1963, Ex. Ses., ch. 21, § 2, p. 1415, 1429, he was awarded a state indemnity payment in the sum of $6,000 for unjust imprisonment.