State v. Prue

415 A.2d 234 (1980)

STATE of Vermont v. Michael Albert PRUE.

No. 151-79.

Supreme Court of Vermont.

April 17, 1980.

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

Gear, Kittell & Davis, Burlington, for defendant.

Before BARNEY, C. J., DALEY, BILLINGS and HILL, JJ., and KILBURN, District Judge, Specially Assigned.

PER CURIAM.

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.

Judgement affirmed.