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State v. Prue

Supreme Court of Vermont
Apr 17, 1980
415 A.2d 234 (Vt. 1980)


No. 151-79

Opinion Filed April 17, 1980

1. Appeal and Error — Preservation of Questions — Failure To Present Below

Where constitutional issues raised on appeal were not raised below and there appeared to be no glaring error, they would not be considered on appeal.

Driving while under the influence conviction was appealed. District Court, Unit No. 2, Chittenden Circuit, Connarn, J., presiding. Affirmed.

Mark J. Keller, Chittenden County State's Attorney, Norman R. Blais, Chief Deputy State's Attorney, and Robert V. Simpson, Jr., Deputy State's Attorney, Burlington, for Plaintiff.

Gear, Kittell Davis, Burlington, for Defendant.

Present: Barney, C.J., Daley, Billings and Hill, JJ., and Kilburn, District Judge, Specially Assigned

Defendant appeals his conviction for driving under the influence of intoxicating liquor. 23 V.S.A. § 1201(a)(2). On the night in question, defendant was involved in an accident that prompted police investigation, but before the investigating officer could take a sample of his breath, he was injured in a second accident. Defendant was sent directly to the hospital, and it was not until three hours after the original accident that the police obtained a breath test. Because of this delay, defendant moved to suppress the results of the test. The court heard the motion and denied it.

On appeal, defendant briefs two questions: (1) whether the breath test, taken three hours after the accident, constituted an unreasonable search and seizure under the Fourth Amendment to the United States Constitution; and (2) whether 23 V.S.A. § 1202, if construed to impose no time limit on the taking of a breath test, violates the Due Process Clause of the Fourteenth Amendment. Upon review of the record, however, we find that neither of these constitutional arguments were made below. The rule is well established that this Court will not consider matters that are raised for the first time on appeal. State v. LaGoy, 136 Vt. 39, 42, 383 A.2d 604, 606-07 (1978); State v. Kennison, 135 Vt. 238, 240, 373 A.2d 556, 558 (1977). Because none of the issues that actually were argued below are briefed, see Quazzo v. Quazzo, 136 Vt. 107, 111, 386 A.2d 638, 641 (1978); Wells v. Village of Orleans, Inc., 132 Vt. 216, 224-25, 315 A.2d 463, 468 (1974), and no "glaring error" appears, see State v. Kasper, 137 Vt. 184, 191, 404 A.2d 85, 89 (1979), no issue is presented for review.

Judgment affirmed.

Summaries of

State v. Prue

Supreme Court of Vermont
Apr 17, 1980
415 A.2d 234 (Vt. 1980)
Case details for

State v. Prue

Case Details

Full title:State of Vermont v. Michael Albert Prue

Court:Supreme Court of Vermont

Date published: Apr 17, 1980


415 A.2d 234 (Vt. 1980)
415 A.2d 234

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