Opinion
No. 84-326
Decided October 30, 1985
1. Motor Vehicles — Alcohol Tests — Driver's Sample Assuming arguendo that defendant had any constitutional right to a blood alcohol test at his request, facts of the case showed that he was given a reasonable opportunity to exercise the right, which he declined.
2. Motor Vehicles — Alcohol Tests — Driver's Sample DWI defendant had no right to be transported to have a blood sample drawn, where the State did not conduct any blood alcohol test and where defendant had refused earlier offers to have such a sample taken. State v. Martin, 125 N.H. 672 (1984).
3. Constitutional Law — Equal Protection — Alcohol Tests Claim of defendant charged with driving while under the influence that he was denied equal protection by the State's refusal to pay for an independent blood alcohol content test was not considered, since defendant made no claim of indigency or inability to pay for the test. State v. Martin, 125 N.H. 672 (1984).
4. Motor Vehicles — Alcohol Tests — Driver's Sample At trial for driving while under the influence, jury instruction that State had no obligation to provide a chemical blood alcohol content test was a correct statement of the law.
Stephen E. Merrill, attorney general (Andrew L. Isaac, assistant attorney general, on the brief and orally), for the State.
Law Offices of Randall E. Wilbert, of Nashua (Randall E. Wilbert on the brief and orally), for the defendant.
MEMORANDUM OPINION
The defendant appeals the denial by the Superior Court (Bean, J.) of his pretrial motion to dismiss the charge of driving under the influence of intoxicating liquor, as well as his later conviction after a jury trial before Pappagianis, J. We affirm.
After the Nashua police had charged the defendant on May 17, 1983, with the misdemeanor of driving while under the influence of intoxicating liquor, RSA 265:82, he agreed to take a breath test subject to the implied consent law. See RSA 265:84 et seq. On finding that the Nashua Police Department's breathalyzer machine was broken, the arresting officer took the defendant to the Merrimack police station to use a machine there. When it, too, proved to be broken, the officer returned the defendant to Nashua, to be booked and jailed.
When he first requested that the defendant take a breath test, the officer advised the defendant that he had a right to an additional test at his expense for his own evidence. See RSA 265:86. Twice again on the return from Merrimack the officer gave the defendant the opportunity to have a blood sample taken for independent testing, but he declined each time. Fifteen or twenty minutes after he had been placed in a cell, however, the defendant demanded to be taken out for a blood test. By then, about one hour and forty minutes had passed since the arrest, and the officer was about to leave the police station to resume his patrol. He therefore refused the defendant's request.
On these facts, the defendant first argues that the complaint should have been dismissed for violation of a State and federal constitutional right to a blood test at his request, an issue upon which this court has never ruled. The issue is not properly before us on this record, however. Assuming arguendo that the defendant has the right he asserts, he was given a reasonable opportunity to exercise it. The officer provided the defendant with the opportunity for such a test three times, and the defendant expressly refused the last two offers. In view of the rejected offers, and the diminishing value of the test as any alcohol became metabolized, see Harlan v. State, 113 N.H. 194, 197, 308 A.2d 856, 858 (1973), it was not unreasonable for the officer to refuse to transport the defendant to have a blood sample drawn one hour and forty minutes after arrest, when the officer was about to return to his patrol.
[2, 3] The defendant next argues that the court should have dismissed the complaint because the officer's refusal to transport him to have a blood sample drawn was equivalent to the destruction of potentially exculpatory evidence. To the extent that this second claim raises any issue beyond the first, discussed above, we have already rejected it in State v. Martin, 125 N.H. 672, 675-77, 484 A.2d 1176, 1178-79 (1984). Martin also disposes of the defendant's argument that he was denied equal protection by the State's refusal to pay for the test, since he makes no claim of indigency or inability to pay for the test. Id. at 677, 484 A.2d at 1180.
The defendant's remaining claims go to the trial court's jury instructions. The defendant objected to the instruction that the State had no obligation to provide a chemical test. This instruction was a correct statement of the law, however, as we have noted above. State v. Martin, supra at 676, 484 A.2d at 1179.
The defendant also objected to the court's further instructions that alcohol is metabolized over time and that the jury should not speculate about the alcoholic content of the defendant's blood in the absence of evidence of the results. But he stated no reasons for these objections, which therefore were insufficient to preserve any issues for appeal. See State v. Fournier, 123 N.H. 777, 779, 465 A.2d 898, 900 (1983). The defendant cannot, in any event, be heard to complain about the instruction on metabolization, since he had himself introduced into evidence a chart indicating the rate at which metabolization occurs.
Affirmed.
JOHNSON, J., did not sit.