State v. Reeter

• Decision Date: 10 September 2019
• Docket Number: WD 81725
• Parties: STATE of Missouri, Respondent, v. Ronda Sue REETER, Appellant.
• Court: Missouri Court of Appeals

582 S.W.3d 913

STATE of Missouri, Respondent,
v.
Ronda Sue REETER, Appellant.

WD 81725

Missouri Court of Appeals, Western District.

Filed: September 10, 2019

Adam L. Warren, Chillicothe for respondent.

Damien Bhakti De Loyola, Kansas City for appellant.

Before Division One: Cynthia L. Martin, P.J., and Victor C. Howard and Alok Ahuja, JJ.

Alok Ahuja, Judge

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

582 S.W.3d 915

vehicle was travelling unusually slowly, and then pulled over on the side of the road. Trooper Raney turned his patrol car 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 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

582 S.W.3d 916

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.

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, 766 (Mo. 1975) ; Kotar v. Dir. of Revenue , 169 S.W.3d 921,...