State v. Winstead, 150 M.G.

244 (2003)
836 A.2d 775
Supreme Court of Magnolia The record supports the following facts. The
charge arose out of an incident on April 6, 2002,
The STATE of Magnolia when, at approximately 3:13 a.m., Officer Shawn
v. L. Hallock of the Claremont Police Department
William T. Winstead discovered the defendant in a car in the Wal-Mart
parking lot. The defendant was sleeping upright in
No. 2002-660
the driver’s seat, with the car engine running. At
trial, the defendant testified that he decided to
Argued October 9, 2003 sleep in his car because he was “not ... capable to
Opinion Issued November 12, 2003 drive anywhere,” and that the car was running so
he could stay warm. The defendant further
testified that while he had no intention of driving
Synopsis the car, he did unlock the door, sit in the driver’s
seat, push the clutch in, move the gear selector to
Following a bench trial, defendant was convicted neutral, start the engine, and turn on the heater.
in the District Court, Claremont County, Yazinski,
J., of driving under the influence (DUI). Hallock approached the car and attempted to wake
Defendant appealed. The Supreme Court, the defendant. When the defendant awoke and
Duggan, J., held that sufficient evidence existed spoke with Hallock, Hallock “immediately
that defendant was in actual physical control of smelled an odor of intoxicant.” The defendant
car before he fell asleep to support conviction. admitted to Hallock that he had consumed a six-
pack of Bacardi Silvers that evening. Hallock
Affirmed. asked the defendant to perform field sobriety
tests, which the defendant failed. Hallock
Attorneys and Law Firms subsequently arrested the defendant for driving
while intoxicated.
**776 *245 Peter W. Heed, attorney general
(Jonathan V. Gallo, assistant attorney general, on After his arrest, the defendant was taken to the
the brief and orally), for the State. Claremont Police Department where he read and
signed the Administrative License Suspension
Nancy S. Tierney, of Lebanon, by brief and form, which authorized the police to perform any
orally, for the defendant. combination of breath, blood, urine or physical
testing. The defendant was first given an
intoxilyzer breath test, which resulted in a blood
Opinion
alcohol content (BAC) of 0.07. The result of the
defendant’s intoxilyzer test was below the
DUGGAN, J. statutorily defined level (BAC of 0.08) for prima
facie evidence of intoxication. See RSA 265-A:2.
Following a bench trial in Claremont District Hallock then asked the defendant to take a blood
Court (Yazinski, J.), the defendant, William T. test. The defendant testified that Hallock
Winstead, was found guilty of driving while requested a blood test only for drugs. The
intoxicated. See RSA 265-A:2 (Supp.2002). On defendant’s blood was tested for both drugs and
appeal, he contends that: (1) the trial court erred alcohol, *246 which resulted in a BAC of 0.08.
when it admitted the results of his blood alcohol The results of both tests were admitted at trial
test; (2) he was denied equal protection of the law; without objection. The district court found the
and (3) the evidence was insufficient to prove he defendant guilty and denied his motion to
was in control of the vehicle. We affirm. reconsider. This appeal followed.
State v. Winstead, 150 M.G. 244 (2003)
836 A.2d 775
On appeal, the defendant first argues that the “This court has consistently held that we will not
district court erred in admitting the blood test consider issues raised on appeal that were not
results. The defendant contends that the police presented in the lower court.” State v. McAdams,
were not entitled to conduct further testing after 134 M.G. 445, 447, 594 A.2d 1273 (1991)
the intoxilyzer test revealed a BAC of 0.07 and (quotation omitted). Where the defendant raises a
that the defendant consented only to a blood test constitutional claim, it must be brought to the
for drugs, not alcohol. We conclude, however, attention of the trial court in order to preserve the
that the issue was not preserved for appellate issue for appeal. State v. Patterson, 145 M.G. 462,
review. 466-67, 764 A.2d 901 (2000).

“The general rule in this jurisdiction is that a *247 At trial, defense counsel made three
contemporaneous and specific objection **777 is references to the different treatment afforded the
required to preserve an issue for appellate defendant’s car as opposed to an RV. First,
review.” State v. Brinkman, 136 M.G. 716, 718, defense counsel questioned Officer Hallock on
621 A.2d 932 (1993) (quotation omitted). In cross-examination about another RV present in
addition, “[t]he objection must state ‘explicitly the the Wal-Mart parking lot on the night the
specific ground of objection.’ ” Id. (quoting M.G. defendant was arrested. Second, defense counsel
R. Ev. 103(b)(1)). “This requirement, grounded in questioned Officer Hallock about whether, in
common sense and judicial economy, affords the general, he would knock on the door of an RV
trial court an opportunity to correct an error it may that was running. Finally, as part of closing
have made....” Brinkman, 136 M.G. at 718, 621 argument, the defense argued: “Officer Hallock
A.2d 932. indicated that if he had been in the RV, he would
have never bothered. The mere fact he was in a
At trial, the State questioned Officer Hallock Subaru, or a Saturn, is what caused his eyes to
about the blood test performed on the defendant. light up. The kind of vehicle you’re in shouldn’t
The State then offered the certified lab results of be determinative.” In addition, in a motion to
the blood test as Exhibit 4. The following reconsider, the defense stated that one “area[ ] of
colloquy ensued: law to be reviewed” included “[w]ere there
grounds for waking him if, according to
[STATE]: State would enter Exhibit 4. testimony, he would not have been disturbed if he
had been in an RV.”
[COURT]: Any objection, Ms. Tierney?
Aside from these general references to the
[DEFENSE]: No, Your Honor. different treatment afforded persons in cars and
RVs, no constitutional argument was raised at the
Because the defendant failed to make “a trial court. At no point during the trial or in the
contemporaneous and specific objection” to the motion to reconsider did defense counsel assert
admission of the blood test results, id., the issue that the defendant’s right to equal protection was
was not preserved for appellate review. being violated. Because the defendant failed to
“bring the constitutional claim to the attention of
the trial court, the issue is not preserved for
The defendant next argues that his right to equal
appeal, and we decline to review it.” Id. at 467,
protection was violated because Officer Hallock
764 A.2d 901.
testified that he does not typically disturb people
parked in recreational vehicles (RVs) in the Wal-
Mart parking lot. Thus, the defendant argues, he Finally, the defendant argues that because he was
was treated differently because he was in a car. asleep, only turned on the heat and had no intent
We conclude, however, that this issue was also to drive the car, there was insufficient evidence
not preserved for appellate review. for the trial court to find that he was in control of
State v. Winstead, 150 M.G. 244 (2003)
836 A.2d 775
the car and thus operating a vehicle under the selector to neutral, started the engine and turned
influence. We must determine “whether a rational on the heater. Given these facts and the reasonable
trier of fact ... could have found beyond a inferences therefrom, a rational trier of fact could
reasonable doubt that the defendant was in actual find beyond a reasonable doubt that the defendant
physical control of the **778 [vehicle].” State v. was in actual physical control of the car before he
Holloran, 140 M.G. 563, 564-65, 669 A.2d 800 fell asleep. See Willard, 139 M.G. at 571, 660
(1995) (per curiam); see RSA 265-A:2; RSA A.2d 1086.
259:24 (1993).
Affirmed.
“To have ‘actual physical control’ of a motor
vehicle, one must have the capacity bodily to BROCK, C.J., and BRODERICK, NADEAU and
guide or exercise dominion over the vehicle at the DALIANIS, JJ., concurred.
present time.” State v. Willard, 139 M.G. 568,
571, 660 A.2d 1086 (1995) (emphasis omitted). All Citations
Circumstantial evidence of imminent operation is
also sufficient for actual physical control. See id. 150 M.G. 244, 836 A.2d 775
Accordingly, while a person who is sound asleep
cannot have such a capacity, “circumstantial END OF DOCUMENT
evidence which excludes any other rational
conclusion is sufficient ... to establish beyond a
reasonable doubt the actus reus set out in a motor
vehicle statute.” Id. (quotation omitted).

This case is indistinguishable from Willard. In

Willard, the defendant was found asleep in the
driver’s seat of his vehicle in a parking lot with
the vehicle’s engine idling. A police officer woke
him, determined he was intoxicated and arrested
him for driving while intoxicated. In holding that
*248 a rational trier of fact could find that the
defendant was in actual physical control of the
vehicle, we noted that “if circumstantial evidence
were to prove that [the] defendant [ ] started his
car before falling asleep, he would have been in
actual physical control of it while awake and in
the driver’s seat.” Id.; see also Atkinson v. State,
331 M.G. 199, 627 A.2d 1019, 1028 (1993)
(“Indeed, once an individual has started the
vehicle, he or she has come as close as possible to
actually [operating it] without doing so and will
generally be in ‘actual physical control’ of the
vehicle.”).

Here, the defendant was also found asleep in the

driver’s seat of a car in a parking lot with the
engine running. Moreover, the defendant testified
at trial that he unlocked the door, sat in the
driver’s seat, pushed the clutch in, moved the gear