A decision from the Washington State Supreme Court

This case involves private consultation with counsel in the context of CrR 3.1, the rule-based right to counsel. Roman Fedorov was arrested for attempting to elude law enforcement and driving under the influence. He was transported to the Fife City Jail for the purpose of administering a breath alcohol concentration (BAC) test. Fedorov asked for, and was granted, the opportunity to sp~ak with an on-call defense attorney by telephone before consenting to take the BAC test, pursuant to CrR 3 .1. T’he Washington State Patrol (WSP) trooper, however, remained in the one-room Fife jail, citing safety concerns and his need to perform a 15~minute observation period before administering the BAC test. The trooper stood out of earshot at the far side of the room. Fedorov and his attorney chose to converse only in yes/no questions, fearing Fedorov would blurt out something incriminating. Fedorov argues that the presence of the trooper in the room violated his rule-based tight to counsel because only with absolute privacy can· the right to counsel be effective.

We hold that the rule-based right to counsel does not provide for a right to absolute privacy for conversations between attorney and client. The rule-based right to counsel in CrR 3.1 and CrRLJ 3.1, 1 by its own terms, provides only an opportunity to contact an attorney. Once contacted, privacy between the arrestee and attorney may be balanced against legitimate safety and practical concerns, and challenges alleging such violations are reviewed under the totality of the circumstances. We affirm.

(Mike Frisch)