Opinion
May 18, 1971
Proceeding under CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Third Judicial Department by order of the Supreme Court at Special Term, entered in St. Lawrence County) to review a determination of the Commissioner of Motor Vehicles which revoked petitioner's license to operate a motor vehicle. Petitioner was found by State Troopers on August 13, 1969 at about 2:30 A.M., alone in a pickup truck off the road and in a ditch. At a hearing, there was proof: that underneath the truck was a highway sign with double steel posts; that the vehicle and sign were damaged; that petitioner was behind the wheel and, when asked what had happened, said he was going to turn around at an intersection and backed over the large sign and into the ditch; that petitioner staggered when he walked and wobbled when he stood; that his speech was hoarse, his hair mussed, his eyes watery, his face flushed, his clothes mussed and torn and his breath smelled strongly of alcohol. There was further testimony: that a trooper informed petitioner that he was under arrest for driving while intoxicated and asked him if he would submit to a chemical test for intoxication; that petitioner was told that if he did not take this test his license and registration could be revoked by the Department of Motor Vehicles, whether he was found guilty of said charge or not; that after agreeing to take the test and after a breathalizer machine was set up, petitioner stated he did not want that test and that he did not believe the machine to be accurate; that petitioner was asked again if he would take the test and said he would not, stating that he would submit to a blood test by a doctor of his own choice; and that petitioner was told that, after conducting the breath test, he would be allowed to take a blood test by his own physician. Clearly, there was substantial evidence that the trooper had reasonable grounds to believe that petitioner was driving in an intoxicated condition (cf. Matter of Brown v. Hults, 24 A.D.2d 1068), that an adequate statutory warning had been given (Vehicle and Traffic Law, § 1194, subd. 1) and that petitioner refused to submit to the chemical test. There was testimony that, at the time petitioner said he would not submit to a chemical test for intoxication, he stated he would submit to a blood test by a doctor of his choice, but such a condition cannot be imposed by an operator ( Matter of Breslin v. Hults, 20 A.D.2d 790). There was no evidence of any attempt to utilize the breathalizer machine or that petitioner informed the troopers that he would not take the said test because of a cough or breathing problem. Neither was there any expert opinion of the inability or inadvisability of petitioner's submission to the breath test. The record does not contain such proof as to have required the finding of an inability, rather than a refusal to take the proffered test (cf. Matter of Scott v. Kelly, 5 A.D.2d 859). Determination confirmed, without costs. Herlihy, P.J., Reynolds, Greenblott, Cooke and Simons, JJ., concur.