Summary
In Matter of Jentzen v. Tofany (33 A.D.2d 532) the court held that the petitioner did not make "an understanding refusal" to take the test when he was asked "`Will you submit to a chemical test for intoxication?
Summary of this case from O'Dea v. TofanyOpinion
September 18, 1969
Appeal from the Erie Supreme Court.
Present — Del Vecchio, J.P., Marsh, Witmer, Moule and Henry, JJ.
Determination unanimously annulled, with costs. Memorandum: In this review of respondent's determination revoking petitioner's operator's license on the ground that he refused to submit to a test for determining the alcoholic content of his blood, we find that petitioner did not make an understanding refusal to take the test. (Cf. Matter of Sweeney v. Tofany, 30 A.D.2d 934.) He was involved in an automobile collision at 8:00 P.M. Five minutes thereafter he was arrested and in response to the arresting officer's question "Will you submit to a chemical test for intoxication?" he said "I cannot be involved in anything." He was not informed that refusal to take the test would be grounds for revocation of his driver's license. He called his attorney who arrived at the station at about 9:00 P.M. Petitioner then, on the advice of his attorney, consented to take the test but the officer declined to give it on the ground that petitioner had already refused to take it. There were facilities at the station for administering the test. Nearly an hour remained in which a proper test could have been given within the statutory time (Vehicle and Traffic Law, § 1192, subd. 3). Under these circumstances there was not a refusal to take the test.