(dissenting)—I dissent. The police denied Schulze his right to counsel by refusing to let him telephone his attorney upon arrest. Accordingly, we must reverse his conviction.
We have consistently held that, under our court rules, the right to counsel for an alcohol related offense attaches at the moment of arrest. Tacoma v. Heater, 67 Wn.2d 733, 409 P.2d 867 (1966); 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); State ex rel. Juckett v. Evergreen Dist. Court, 100 Wn.2d 824, 675 P.2d 599 (1984) (Dore, J., writing for a unanimous court); State v. Staeheli, 102 Wn.2d 305, 685 P.2d 591 (1984).3 We unanimously reaffirmed this holding in a case decided this term. Spokane v. Kruger, 116 Wn.2d 135, 803 P.2d 305 (1991).4 The majority fails to account for much of this precedent. Instead, it silently overrules at least three decisions of this court.
The majority relies on precedent holding that the Sixth Amendment does not require recognition of the right to counsel upon arrest. State v. Judge, 100 Wn.2d 706, 714, 675 P.2d 219 (1984). Such reliance ignores our holding in *170Evergreen, in which Justice Dore, writing for a unanimous court, recognized that the result under our court rule differed from the result under the Sixth Amendment. 100 Wn.2d at 830. We confronted the divergence between the requirements of the sixth amendment to the United States Constitution and those of the court rule in Fitzsimmons. In Fitzsimmons, we identified our court rule as the primary source of the right to counsel upon arrest in a DWI case. 93 Wn.2d at 441-42. The procedural history of Fitzsimmons is complex; however, the ruling that the right to counsel pursuant to the court rule attaches upon arrest is still good law.
The majority, relying on Judge and Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966), finds that Schulze's right to counsel pursuant to Const. art. 1, § 22 (amend. 10) has not been violated, because "[n]o 'critical stage' had been reached". Majority, at 162. However, in Heater we held that the right to counsel in cases involving drunk driving attaches at the moment of arrest. We explained that this moment was a critical stage of the proceedings, because the "evidence of intoxication dissipates with the passage of time." Heater, at 739. In particular, we noted that the failure to allow the defendant to immediately notify counsel deprived him of the opportunity to have a doctor administer an objective blood test as soon as possible after the arrest. Heater, at 739. Therefore, denying access to counsel interfered with the accused's ability to prepare a defense to the charge, and to obtain potentially exculpatory evidence.
We followed the reasoning of Heater in State v. Turpin, 94 Wn.2d 820, 620 P.2d 990 (1980). In Turpin, we held that the State has a statutory duty to notify a person accused of vehicular homicide that he has a right to an independent blood test. In so doing we pointed out that " [i]t is in just such cases that the need to protect the defendant's right to proof is most important." 94 Wn.2d at 826. We went on to suppress the results of the blood test because the defendant had no opportunity to procure his own test.
*171Heater and Turpin both stand for the principle that an accused must have the opportunity to gather potentially exculpatory evidence as soon as possible after the arrest. The only way to effectively protect that right is to provide access to counsel once the suspect is arrested, and prior to any mandatory blood test. Thus the logic of Heater and Turpin fits in perfectly with our previous holdings that the statutory right to counsel attaches as soon as the suspect is arrested.
The majority acknowledges that the right to counsel under CrR 3.1 is broader than the Sixth Amendment right to counsel. Majority, at 162. It then goes on to say that the distinction is irrelevant, analyzing that under Kruger no remedy is warranted in this case because the evidence is not tainted. Majority, at 162-63. However, the denial of counsel effectively raises a presumption of prejudice to the defendant. Heater, 67 Wn.2d at 739-40. Such an argument is certainly applicable to this case. Schulze had only .05 percent blood alcohol level. Thus, he was not guilty of a per se violation of driving under the influence. RCW 46.61-.502(1). While he could not refuse to take the blood test, the denial of counsel denied him an opportunity to gather exculpatory evidence and is therefore prejudicial.
The majority further distinguishes this case from Kruger based on the nature of the crimes charged. Majority, at 164. The majority states that because the blood test is mandatory in a vehicular homicide case, Schulze's right to counsel was not affected. This ignores our holding in Turpin. In Turpin, we held that an accused must be apprised of the right to independent testing regardless of the fact that he has no right to refuse the mandatory blood test. 94 Wn.2d at 826. Similarly, an accused must be provided access to counsel prior to the mandatory blood test, regardless of the fact that he cannot refuse the test. As Heater and Turpin make clear, the accused needs access to counsel in order to protect his right to gather potentially exculpatory evidence. Providing access to counsel does not interfere with, and is not inconsistent with, mandatory testing.
*172The majority's analysis of the facts betrays some confusion about what is at stake here. The majority accurately states that the officers refused to let Schulze use the telephone until 1 a.m., over an hour after the blood was drawn. Majority, at 157. But the majority defends its denial of the right to counsel on the grounds that Schulze was not prejudiced because he was not denied "helpful advice". Majority, at 164. The defendant here was denied the right to "helpful advice" in that he was denied an opportunity to gather exculpatory evidence. While a defendant has no right to have his attorney present at the test, he does, however, have the right to consult with his distant attorney by phone. State v. Staeheli, 102 Wn.2d at 307, 309. The police denied Schulze that right. Compliance with our precedent does not conflict with the police's right to administer a timely test.
The majority states that RCW 46.20.308(3) is a substantive matter which cannot be amended by a procedural court rule. Majority, at 160-61. However, in State v. Smith, 84 Wn.2d 498, 527 P.2d 674 (1974), we confronted a statute requiring a judge to fix bail upon conviction pending appeal. This statute conflicted with a court rule requiring release without bail unless the court finds a substantial danger or risk of flight. We reaffirmed our power to promulgate rules of procedure, and abrogated the statute. Smith, at 501-02. The statute authorizing mandatory blood testing is a procedural statute, used to obtain evidence. The majority simply fails to recognize that the court can require notification of counsel without abrogating the mandatory nature of the blood test. See Nearing v. Golden State Foods Corp., 114 Wn.2d 817, 821, 792 P.2d 500 (1990) (court rules supersede procedural statute in event of a conflict; statute and rule should be harmonized when possible); Petrarca v. Halligan, 83 Wn.2d 773, 776, 522 P.2d 827 (1974) (court rules supersede conflicting procedural statute); State v. Smith, supra.
In addition, the majority states that Schulze waived his right to counsel by keeping silent when his rights were first *173read to him. Such a statement is in direct conflict with this court's holding that "a valid waiver will not be presumed simply from the silence of the accused after warnings are given". (Italics mine.) State v. Adams, 76 Wn.2d 650, 670, 458 P.2d 558 (1969) (quoting Miranda v. Arizona, 384 U.S. 436, 485, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974 (1966)), rev'd, 403 U.S. 947, 29 L. Ed. 2d 855, 91 S. Ct. 2273 (1971); State v. Blanchey, 75 Wn.2d 926, 933, 454 P.2d 841 (1969), cert. denied, 396 U.S. 1045 (1970); State v. Davis, 73 Wn.2d 271, 286, 438 P.2d 185 (1968); Ritchie v. Rhay, 63 Wn.2d 508, 387 P.2d 967 (1963). In each of these cases we required that a waiver of a constitutional right must be made knowingly, voluntarily, and intelligently.
Schulze's rights were read to him at 11:14 p.m. and again at 11:23 p.m. It was during this time period that he was informed of the blood test, and it was upon learning of the test that he requested he be allowed to speak to his attorney. An intelligent waiver may not be presumed from the fact that Schulze was silent for a few minutes. The majority is mistaken in saying that Schulze waived his right to counsel.
In short, the majority silently overrules many of our major decisions governing the right to counsel for alcohol related offenses. It also endangers precedent governing our authority to promulgate and interpret court rules. Schulze had the right to call his attorney before the blood test was taken. We must reverse and provide the remedy dictated by the majority decision filed this year in Kruger.
Smith, J., concurs with Utter, J.
Reconsideration denied July 15, 1991.
Schulze's right may be of state constitutional dimension. In Heater, we relied on both state and federal constitutional provisions. Heater, 67 Wn.2d at 735. On remand in Fitzsimmons, we relied primarily on the court rule, but stated that our reliance on federal law "would not preclude . . . taking a more expansive view of the right to counsel under state provisions". Fitzsimmons, 94 Wn.2d at 859.
Because Schulze's rights under the court rule were violated, we have no occasion to address the question of whether Schulze's rights are of state constitutional dimension. The majority argues that there is no state constitutional right to counsel upon arrest in a case such as this and cites to Heater. It is true that the right to counsel attaches at a "critical stage" under our state constitution. However, the majority ignores the fact that Heater holds, in drunk driving cases, arrest is a "critical stage". See majority, at 161-62; Heater, 67 Wn.2d at 739-40.
My dissent in Spokane v. Kruger, supra, only addresses the issue regarding the remedy to be provided for a violation of this right to counsel. Kruger provides that the remedy now for a denial of counsel in violation of former JCrR 2.11 is suppression of any evidence acquired after the violation, overruling Fitzsimmons insofar as the remedy provided was dismissal.