Opinion
No. 83-248
Decided March 2, 1984
Appeal and Error — Preservation of Questions — Failure To Present Below In the case of defendant convicted of driving while intoxicated, second offense, where the defendant alleged on appeal that the trial court erred in denying his motion in limine, which had asked the trial court to determine, before trial, the admissibility of the fact of the defendant's refusal to take a breathalyzer test, and in ruling the evidence admissible, and where the defendant had raised, and the court had addressed, the issue of admissibility only on federal constitutional grounds but where the defendant sought to raise and argue on appeal three different grounds for holding the fact of refusal inadmissible, the supreme court dismissed the appeal since it will not consider issues raised on appeal that were not presented in the lower court.
Gregory H. Smith, attorney general (Donald J. Perrault, assistant attorney general, on the brief, and Michael A. Pignatelli, assistant attorney general, orally), for the State.
James E. Duggan, appellate defender, of Concord, by brief and orally, for the defendant.
MEMORANDUM OPINION
The defendant appeals his conviction of driving while intoxicated, second offense. RSA 265:82. He alleges that the Superior Court (Cann, J.) erred in denying his motion in limine, which asked the superior court to determine, before trial, the admissibility of the fact of the defendant's refusal to take a breathalyzer test.
At the hearing on the motion, the defendant raised, and the court addressed, the issue of admissibility only on federal constitutional grounds. The court properly found the United States Supreme Court case of South Dakota v. Neville, 103 S. Ct. 916 (1983) controlling and ruled the evidence admissible.
On appeal, the defendant seeks to raise and argue three grounds for holding the fact of refusal inadmissible: the New Hampshire Constitution, pt. I, art. 15; the statutory scheme of the implied consent law, RSA 266:84 to :92; and the discretion of the trial court in determining the admissibility of evidence. However, it is well established that this court will not consider issues raised on appeal that were not presented in the lower court. E.g., Daboul v. Town of Hampton, 124 N.H. 307, 471 A.2d 1148 (1983). Therefore, we dismiss the appeal.
Appeal dismissed.