            IN THE MISSOURI COURT OF APPEALS
                    WESTERN DISTRICT
 STATE OF MISSOURI,            )
                 Respondent, )
                               )
 v.                            )                WD81725
                               )
 RONDA SUE REETER,             )                FILED: September 10, 2019
                    Appellant. )
              Appeal from the Circuit Court of Livingston Cuonty
                   The Honorable Jim P. Valbracht, Judge
               Before Division One: Cynthia L. Martin, P.J., and
                    Victor C. Howard and Alok Ahuja, JJ.
       Following a bench trial in the Circuit Court of Livingston County, Ronda Sue

Reeter was convicted of the class B misdemeanor of driving while intoxicated.

Reeter appeals. She argues that the circuit court plainly erred in admitting into

evidence the results of an illegally obtained blood test. She also argues that she

received ineffective assistance of counsel when her trial attorney failed to move to

suppress the blood test results. We affirm.

                                 Factual Background1

       In the early morning of June 11, 2017, Missouri State Highway Patrol

Trooper Brian Raney observed a vehicle going in the opposite direction on U.S.

Highway 65 in Livingston County. The vehicle was travelling unusually slowly,

and then pulled over on the side of the road. Trooper Raney turned his patrol car


      1      We review the facts in the light most favorable to the verdict. State v. Lee,
498 S.W.3d 442, 446 n.1 (Mo. App. W.D. 2016) (citation omitted).
around, stopped behind the vehicle, and activated his emergency lights. Trooper

Raney approached the vehicle on foot to speak with the driver. He detected an odor

of alcohol coming from the interior of the vehicle.

      Reeter was seated in the vehicle’s driver’s seat. She informed Trooper Raney

that she had pulled over because she thought she had hit something, possibly an

animal. Reeter admitted to having consumed alcohol with her dinner earlier in the

evening. Trooper Raney asked Reeter to accompany him to his patrol car. In his

vehicle, Trooper Raney detected an odor of alcohol coming from Reeter, and

observed that her eyes were glassy and bloodshot and that she spoke with a “thick

tongue.”

      Trooper Raney attempted to administer a series of field sobriety tests. First,

he requested that Reeter submit to a portable breath test. Although Reeter

consented, after four attempts Trooper Raney was unable to obtain a testable

sample. Trooper Raney asked Reeter to recite the alphabet and to count backwards

from ninety-nine to seventy-four. He reported that Reeter quickly recited the

alphabet, but did not state each letter as Trooper Raney had requested. He testified

that, while counting backwards, Reeter slurred her speech and stopped counting at

seventy-eight instead of seventy-four as instructed. Next, Trooper Raney attempted
to perform a walk-and-turn test and a standing balance test outside his patrol car.

Reeter stated that she could not complete the tests because she was disoriented by

the patrol car’s rooftop lights, and had balance issues due to prior medical problems.

Finally, Trooper Raney performed a horizontal gaze nystagmus test. He testified

that Reeter exhibited four of six possible clues of intoxication on the horizontal gaze

nystagmus test; a driver exhibiting two clues had failed the test.

      Based on Trooper Raney’s observations, he arrested Reeter on suspicion of

driving under the influence of drugs or alcohol. Trooper Raney took Reeter to a
local hospital to obtain blood and urine samples for chemical testing. At the


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hospital, Trooper Raney read Reeter the Implied Consent form, which informed her

that if she refused the test, her driver’s license would be revoked. See §§ 577.020,

577.041.2, RSMo. Reeter became argumentative, contesting whether she should

have to submit to testing, and questioning who was going to pay for the tests.

Eventually, Reeter consented to the blood and urine tests after Trooper Raney

clarified that she would not have to pay for the testing at that time (although he

told her that a court might later order her to pay for the testing). After the

hospital’s medical technician drew Reeter’s blood and obtained a urine sample,

Reeter demanded that the samples be left at the hospital and tested there. Despite

Reeter’s objections, Trooper Raney collected Reeter’s blood and urine samples and

placed them into evidence containers for transfer to the Highway Patrol’s crime lab

for testing.

       Reeter was charged with driving while intoxicated. At her bench trial, the

Highway Patrol lab technician who tested Reeter’s blood samples testified that the

samples revealed a blood alcohol concentration of .097 percent. (Reeter’s urine

sample was not tested.) When the State moved to introduce the lab technician’s

report of the blood test results, defense counsel objected on the basis of improper

foundation and “typical chain of custody issues.” The circuit court overruled defense
counsel’s objections and admitted the report into evidence. At the conclusion of the

bench trial, the circuit court found that “under the totality of the circumstances . . .

[T]rooper [Raney] had reason to request the [blood] test, [and] that he properly gave

the Implied Consent law.” The court found Reeter guilty of driving while

intoxicated and sentenced her to a fine, fees and costs totaling $716.50.

       Reeter appeals.




                                            3
                                      Discussion
                                           I.
      Reeter first argues that the circuit court plainly erred by admitting the blood

test results into evidence. She contends that the blood test results were illegally

obtained because she did not give her unconditional and unqualified consent to the

drawing and subsequent testing of her blood.

      Reeter acknowledges that her trial counsel did not object to the admissibility

of the blood test results on the basis that the blood samples were illegally obtained

and tested (instead, counsel objected only that a proper foundation had not been

laid). Because the issue was not properly preserved for appeal (as Reeter concedes),

it is reviewable only for plain error. State v. Clay, 533 S.W.3d 710, 717 (Mo. 2017).

On plain error review, an appellant must show: (1) an “evident, obvious, and clear”

error by the trial court that (2) has caused a “manifest injustice or miscarriage of

justice.” State v. Celis-Garcia, 420 S.W.3d 723, 727 (Mo. App. W.D. 2014) (citation

and internal quotation marks omitted).

      The circuit court did not plainly err in admitting the blood test results,

because the evidence establishes that Reeter consented to having her blood drawn

and tested. Under § 577.020.1(1), RSMo, a driver operating a motor vehicle in

Missouri is deemed to have impliedly consented to a chemical test to determine
blood alcohol concentration if the driver is arrested on probable cause to believe that

he or she is driving while intoxicated.

      A driver may withdraw the statutory implied consent, and refuse testing. See

Murphy v. Dir. of Revenue, 170 S.W.3d 507, 510 (Mo. App. W.D. 2005) (noting that a

driver subject to § 577.020 is free to “explicitly negate[ ] or withdraw[ ]” the implied

consent); § 577.041, RSMo. An arrestee may refuse a chemical test by expressly

stating their refusal to submit to a requested test, or simply by not participating in
the actions necessary to complete the test. Spradling v. Deimeke, 528 S.W.2d 759,



                                           4
766 (Mo. 1975); Kotar v. Dir. of Revenue, 169 S.W.3d 921, 925 (Mo. App. W.D. 2005).

In addition, courts in driver’s license suspension or revocation cases have held that

a law enforcement officer may deem a driver’s conditional or qualified consent to be

the equivalent of a refusal. Kotar, 169 S.W.3d at 925; Spradling, 528 S.W.2d at

766. For example, an arrestee who states that he does not want to take a test, but

will do so if the arresting officer wants him to, has given a conditional consent

which the officer can treat as a refusal. Zimmerman v. Dir. of Revenue, 72 S.W.3d

634, 637 (Mo. App. S.D. 2002). Additionally, a driver’s consent which is conditioned

upon his first being allowed to use the restroom may be deemed a refusal. Rogers v.

Dir. of Revenue, 184 S.W.3d 137, 144 (Mo. App. W.D. 2006).

      Here, Reeter argues that she did not give her unqualified consent to a blood

draw, and that her actions should be deemed a refusal.2 Reeter initially complained

that she had done nothing wrong, and therefore should not be required to submit to

a chemical test; she also stated that she was unwilling to pay for any testing

conducted at the hospital to which Trooper Raney had taken her.

      Arguably, Reeter’s initial responses could be deemed to be a refusal. Trooper

Raney was not required to accept Reeter’s initial refusal as the end of the matter,

however. We have explained that, under the relevant statutes, “should a driver
initially refuse to submit to chemical testing, the arresting officer has the choice of

either permitting the driver to withdraw his refusal and submit to chemical testing

or of letting the driver's initial refusal stand as grounds to administratively revoke

the driver's license.” Rothwell v. Dir. of Revenue, 419 S.W.3d 200, 206 (Mo. App.

W.D. 2013) (footnote omitted). Thus, “[t]hough [Reeter] initially refused [her]

consent to submit to chemical testing, it was within Trooper [Raney]’s discretion to

        2      Notably, although Reeter now claims that her statements should be deemed
to be a refusal (and that the adverse blood test results should therefore have been
suppressed), she did not suffer the consequences of a refusal at the time (namely, the
administrative revocation of her driving privileges for one year under § 302.574, RSMo).


                                            5
persist in his efforts to secure [Reeter]’s consent, or to let [Reeter]’s initial refusal

stand as grounds to administratively revoke [her] license.” Id.

       In this case, despite Reeter’s initial reluctance to give blood and urine

samples, she ultimately agreed to provide samples after Trooper Raney informed

her that she would not have to pay for the testing at that time (although a court

might later require her to do so). Trooper Raney testified that, once he clarified

that Reeter would not be expected to pay for the testing when it occurred, “she

decided to take it.” Reeter herself testified that she “originally agreed to let him

draw the blood,” and only objected after her blood had been drawn when she learned

that Trooper Raney was going to take the samples with him, and would not be

leaving them at the hospital for testing. Whatever her initial response, Reeter gave

her unqualified consent to the blood draw before it was administered.

       Reeter also argues that she qualified or conditioned her consent because,

after her blood was drawn, she asked Trooper Raney to leave the samples at the

hospital to be tested, and objected to him taking the samples for testing at the

Highway Patrol’s lab. By the time Reeter attempted to direct where her samples

would be tested, however, her blood had already been drawn, and Trooper Raney

had taken possession of the samples. And Reeter had already consented to have her
blood drawn and tested. The Informed Consent form which Trooper Raney read to

Reeter informed her that he was “requesting [that she] submit to a chemical test” of

her blood “[t]o determine the alcohol or drug content of [her] blood.” See

§ 577.020.1. By agreeing to this request, Reeter necessarily agreed not only to have

her blood drawn, but also to have it subjected to laboratory analysis to determine

whether it contained drugs or alcohol. See State v. Swartz, 517 S.W.3d 40, 49-50

(Mo. App. W.D. 2017) (search warrant which “authorized the search and seizure of

[driver]’s body to obtain a blood sample to . . . locate ‘evidence of the crime of driving




                                             6
while intoxicated’” “was sufficient to authorize both the blood draw and the

[laboratory] testing of the blood to secure evidence” of driving while intoxicated).3

       After the sample was drawn, Reeter did not seek to withdraw her consent to

having her blood tested; she merely attempted to dictate where, and by whom, the

testing would be conducted. Reeter cites no authority to support her claim that she

was entitled to direct the manner in which her blood would be analyzed, after

having consented to the collecting and testing of a blood sample. Sections 577.020

and 577.041 give a driver two options after they have been arrested for driving

while intoxicated: they can either consent to the chemical testing of their breath,

blood, saliva or urine for drugs or alcohol; or they can refuse that consent. The

statutes do not authorize drivers to direct how the chemical testing will be

conducted.

       Because Reeter consented to the collection and testing of her blood, the

circuit court did not plainly err in admitting the blood test results into evidence.

Point I is denied.

                                             II.
       In her second Point, Reeter argues that she received ineffective assistance of

counsel at trial, because her counsel failed to object to admission of the blood test

results on the basis that those results had been illegally obtained.

       There are several problems with Reeter’s ineffective-assistance-of-counsel

argument. First, “claims of ineffective assistance of counsel cannot be asserted on a

direct appeal from a misdemeanor conviction. Defendant’s remedy, if any, for

        3       Notably, caselaw addressing Fourth Amendment search-and-seizure issues
generally holds that “the taking and later analysis of . . . [a] blood [sample] are ‘a single
event for fourth amendment purposes,’ and that ‘a “search” is completed upon the drawing
of the blood.’” Dodd v. Jones, 623 F.3d 563, 569 (8th Cir. 2010) (quoting United States v.
Snyder, 852 F.2d 471, 474 (9th Cir. 1988); Johnson v. Quander, 440 F.3d 489, 500 (D.C. Cir.
2006)). Under this reasoning, “the testing of [a driver]’s blood require[s] no justification
beyond that which [is] necessary to draw the blood” in the first place. Id. See also, e.g.,
People v. Woodard, 909 N.W.2d 299, 305-10 (Mich. App. 2017) (collecting cases).


                                              7
ineffective assistance of counsel in misdemeanor cases is by habeas corpus.” State

v. Morovitz, 867 S.W.2d 506, 510 (Mo. 1993); accord, State v. Reynolds, 360 S.W.3d

332, 336 (Mo. App. W.D. 2012). We recognize that, because Reeter was convicted of

a misdemeanor and was not sentenced to incarceration, she may not be able to

assert her ineffective assistance of counsel claim in any other manner (such as in a

post-conviction relief motion, or in a petition for habeas corpus relief).4

Nevertheless, we consider ourselves bound to follow the Missouri Supreme Court’s

holding in Morovitz.

       Even if this appeal were an appropriate procedural vehicle to raise an

ineffective assistance of counsel claim, it is not clear that Reeter is entitled to assert

such a claim at all. Reeter was charged with, and convicted of, a misdemeanor. The

Supreme Court of the United States has made clear that the Sixth Amendment

right to counsel attaches to prosecution for a misdemeanor only if the prosecution

“actually leads to imprisonment.” Alabama v. Shelton, 535 U.S. 654, 661 (2002)

(quoting Argersinger v. Hamlin, 407 U.S. 25, 33 (1972)); see also Nichols v. United

States, 511 U.S. 738, 746-47 (1994); Scott v. Illinois, 440 U.S. 367, 374 (1979).

Missouri courts have likewise recognized that the constitutional right to counsel

does not attach to a misdemeanor prosecution, even if imprisonment is a statutorily
authorized punishment for the misdemeanor, unless a term of imprisonment is

actually imposed on the defendant. Trimble v. State, 593 S.W.2d 542, 545 (Mo.

1980); State v. Keeth, 203 S.W.3d 718, 726-28 (Mo. App. S.D. 2006).

       In this case, the circuit court imposed only financial penalties on Reeter, and

did not sentence her to any term of imprisonment or confinement. Therefore,

Reeter had no constitutional right to counsel in this case. “Where there is no


        4       Rule 29.15 provides a post-conviction remedy for “[a] person convicted of a
felony after trial,” while Rule 91.01 allows “[a]ny person restrained of liberty within this
state” to petition for habeas relief.


                                               8
constitutional right to counsel there can be no right to effective assistance of

counsel.” Pollard v. Delo, 28 F.3d 887, 888 (8th Cir. 1994)) (citing Wainright v.

Torna, 455 U.S. 586 (1982)); see also, e.g., Barnett v. State, 103 S.W.3d 765, 773 (Mo.

2003) (“There is no constitutional right to counsel in a post-conviction proceeding.

Thus, a post-conviction movant has no right to effective assistance of counsel.”)

(citing State v. Hunter, 840 S.W.2d 850, 871 (Mo. 1992)).

      Finally, as explained in § I, above, the results of Reeter’s blood test were

admissible, because she consented to the collection and testing of her blood. A

motion to suppress would not have been successful, and “counsel will not be found

to be ineffective for failing to investigate and file a meritless motion to suppress.”

Stragliati v. State, 556 S.W.3d 660, 664 (Mo. App. E.D. 2018) (citation and internal

quotation marks omitted); see also, e.g., Coon v. State, 504 S.W.3d 888, 892 (Mo.

App. W.D. 2016). Therefore, even if Reeter were entitled to assert an ineffective

assistance of counsel claim in this appeal, we would reject that claim.

      Point II is denied.

                                      Conclusion
      The judgment of the circuit court is affirmed.




                                                Alok Ahuja, Judge
All concur.




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