Opinion
May 23, 1961
Present — Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ.
Proceeding pursuant to article 78 of the Civil Practice Act to review a determination of the Commissioner of Motor Vehicles. On this review of the revocation of petitioner's motor vehicle operator's license for refusal to take a blood test after arrest for driving while intoxicated, the petitioner argues that there is "no substantial, competent evidence * * * to support a finding that petitioner knowingly refused to submit to a chemical test", and that the finding of such a refusal is arbitrary and capricious. That petitioner refused to undergo a test after his arrest is abundantly established. This is not disputed by petitioner who asserts no recollection of the incidents described: "I don't remember a thing myself. Everything I know about it I was told." The arresting officer testified petitioner talked on the telephone with his own physician and told the officer his physician advised him not to take the test; whereupon he refused to take it. If, after such an arrest, a person refuses to submit to a chemical test, the statute provides that the Commissioner of Motor Vehicles "shall revoke his license" (Vehicle and Traffic Law, § 71-a, subd. 1 [now § 1194, subd. 1]). There is, moreover, in this record proof that the arrest was made by the officer "having reasonable grounds to believe such person to have been driving in an intoxicated condition" under that section of the statute. The officer testified that petitioner staggered; his breath smelled of alcohol; he had difficulty producing his license and registration; and he had admitted just having driven the car and having had an accident. The record fully justifies the revocation of license. A reading of the record as a whole does not sustain the further argument of petitioner that the hearing officer was prejudiced or biased or had predetermined the case. Determination unanimously confirmed, without costs.