                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0958
                              Filed March 4, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MELANIE ANNE HOLMAN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.



      Melanie Anne Holman appeals her conviction for operating while

intoxicated, third or subsequent offense. AFFIRMED.



      Thomas M. McIntee, Waterloo, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Considered by Bower, C.J., Mullins, J., and Carr, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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CARR, Senior Judge.

       This case began when Officer Trevor McGraw stopped a vehicle after

observing one of its brake lights was out.    During the stop, Officer McGraw

observed that Melanie Anne Holman, the driver, showed signs she was under the

influence of alcohol; he noticed the odor of an alcoholic beverage emanating from

Holman and her eyes were bloodshot and watery. Holman admitted she had

consumed shots of whiskey, and Officer McGraw administered field sobriety tests.

Based on her performance and a preliminary breath test that showed Holman’s

blood alcohol concentration (BAC) was .122, Officer McGraw arrested Holman.

       After transporting Holman to the jail, Officer McGraw read an implied

consent advisory and asked her to take a breath test. The officer offered Holman

the chance to make phone calls before deciding whether to take the breath test.

Holman consented to the breath test, which showed a BAC of .107. The State

charged Holman with operating while intoxicated, third or subsequent offense, and

a jury found her guilty.

       On direct appeal from her conviction, Holman contends she received

ineffective assistance of counsel.1 We review this claim de novo. See Lamasters

v. State, 821 N.W.2d 856, 862 (Iowa 2012). To succeed, Holman must show

counsel breached a duty and prejudice resulted. See State v. Graves, 668 N.W.2d

860, 869 (Iowa 2003). Counsel breaches a duty if counsel’s performance is not

objectively reasonable. See State v. Ortiz, 905 N.W.2d 174, 183 (Iowa 2017).


1 Although Iowa Code section 814.7 (2020) prohibits us from considering
ineffective-assistance-of-counsel claims on direct appeal, it does not apply to
cases pending on July 1, 2019. See State v. Macke, 933 N.W.2d 226, 235 (Iowa
2019). Holman filed her appeal in 2018.
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       Holman first argues that counsel breached a duty by failing to move to

suppress the results of the breath test and statements she made after her arrest.

She claims that Officer McGraw violated her rights under Miranda v. Arizona, 384

U.S. 436, 479 (1966), because during transportation to the jail, she said she

wanted an attorney present with her.          But our supreme court has already

determined that Miranda rights do not apply to a request to submit to chemical

testing under implied consent procedures. See Swenumson v. Iowa Dep’t of Pub.

Safety, 210 N.W.2d 660, 663 (Iowa 1973). And Officer McGraw never denied

Holman the opportunity to contact an attorney. Instead, Holman repeatedly told

the officer that she did not need to call an attorney and had made her decision

about testing. Even in the face of Holman’s insistence that she had no intention of

contacting an attorney, Officer McGraw provided Holman with a phone to ensure

her the opportunity to make phone calls. Eventually, Holman used her phone to

call her former spouse, who did not answer, before reaching her daughter and

having a brief conversation. When Officer McGraw asked if he prevented Holman

from calling anyone, Holman did not hesitate in answering, “No.” On this record,

counsel had no duty to move to suppress the results of Holman’s breath test on

this basis because there is no reasonable probability that the court would have

granted the motion. See State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009)

(stating “counsel has no duty to raise issues that have no merit”).

       We next reject Holman’s claim that her trial counsel was ineffective in failing

to move to suppress statements she made after requesting counsel. The record

does not disclose that Officer McGraw testified regarding any incriminating

statements Holman made. Only part of the video from the patrol car and the jail
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was shown at trial. Because nothing in the record shows that any incriminating

statements were shared with the jury, Holman was not prejudiced by any failure of

counsel to move to suppress them. The State only prosecuted Holman under Iowa

Code section 321J.2(1)(b) (2016), which requires that the State prove she

operated a motor vehicle while having a BAC of .08 or more. Any incriminating

statements would not prejudice Holman because the State did not prosecute her

under the operating-under-the-influence alternative.

      We also reject Holman’s claim that she did not voluntarily submit to the

breath test, her signature on the implied consent advisory notwithstanding.

Holman cites State v. Pettijohn, 899 N.W.2d 1, 24 (Iowa 2017), for the proposition

that the search-incident-to-arrest exception does not apply to breath tests under

the Iowa Constitution. She advances that consent, implied under Iowa Code

section 321J.6, is involuntary. She seeks to extend Pettijohn from its context under

our boating-while-intoxicated statutes to our implied consent laws for motor

vehicles. But our supreme court expressly disclaimed any conclusion that its

holding in Pettijohn renders the statutory scheme governing implied consent to

testing invalid. 899 N.W.2d at 38 (“[T]his decision only applies to the statutory

scheme for operating a boat while under the influence and not to the statutory

scheme for operating a motor vehicle while under the influence.”); see also id. at

39 (Cady, J., concurring specially) (distinguishing our implied consent laws for

boating from our implied consent laws for operating motor vehicles).

      Finally, Holman contends her trial counsel was ineffective by failing to

challenge the sufficiency of the evidence showing she was under the influence of

alcohol. As noted above, the State only prosecuted Holman for operating a motor
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vehicle with an alcohol concentration of .08 or more. She was not charged with

the under-the-influence alternative.   Counsel had no duty to challenge the

evidence showing she was under the influence.

      AFFIRMED.
