Opinion
May 13, 1971
Appeal from a judgment of the Supreme Court at Special Term, entered November 12, 1970 in Warren County, which granted petitioner's application in a proceeding under CPLR article 78 to annul an order issued by the Commissioner of Motor Vehicles revoking petitioner's driver's license. On November 10, 1969, at about 3:15 A.M., petitioner was arrested in the City of Glens Falls by a local patrolman and charged with driving while intoxicated. Concededly he was given the warning prescribed by section 1194 Veh. Traf. of the Vehicle and Traffic Law and he was further advised that he was entitled to legal counsel. Petitioner agreed to submit to the chemical test. He accompanied the patrolman to the hospital where he was permitted to phone his wife. He then declined to take the test until he talked to his attorney whom his wife was attempting to locate. Subsequently between 3:45 and 4:00 A.M. he was taken to the police station and booked. It is petitioner's contention that he never refused to take the test, but merely desired to talk with his attorney first. He argues that since he was erroneously advised that he was entitled to counsel, the arresting officer should have subsequently explained that his right was not absolute and that if he was unable to contact his attorney within a reasonable length of time, he would again be requested to submit to the test without the aid of counsel. With petitioner's contention we do not agree. Under the statute petitioner had the option of consenting to the chemical test or suffering the loss of his license. He could not condition his consent on first consulting with counsel. (See Matter of Story v. Hults, 27 A.D.2d 745, affd. 19 N.Y.2d 936; Matter of Finocchairo v. Kelly, 11 N.Y.2d 58, cert. den. 370 U.S. 912.) Such a procedure as proposed by petitioner would defeat the purpose of the statute. Judgment reversed, on the law, and petition dismissed, without costs. Herlihy, P.J., Staley, Jr., Cooke, Sweeney and Simons, JJ., concur.