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Matter of Johnson v. Adduci

Appellate Division of the Supreme Court of New York, Second Department
Nov 15, 1993
198 A.D.2d 352 (N.Y. App. Div. 1993)

Summary

agreeing to take test but refusing to blow into tube of testing machine constitutes refusal to take test

Summary of this case from People v. Ayabaca

Opinion

November 15, 1993


Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

The record contains substantial evidence to support the Commissioner's determination that the petitioner refused to submit to a breathalyzer test within the meaning of Vehicle and Traffic Law § 1194. At the time of the petitioner's arrest for driving while intoxicated, a police officer sought to administer a breath test to him for intoxication, which he agreed to take. However, the administering officer testified at the hearing that the petitioner refused to blow into the tube of the testing machine, thereby preventing his breath from being tested. The officer's testimony also established that the machine was in working order. The petitioner did not testify at the hearing.

On this record, the Commissioner properly found that the petitioner's actions constituted a refusal to take the breathalyzer test (see, Matter of Beaver v Appeals Bd., 68 N.Y.2d 935, revg 117 A.D.2d 956 on dissenting opn, at 958; People v Adler, 145 A.D.2d 943; Matter of Van Sickle v Melton, 64 A.D.2d 846; Matter of Di Girolamo v Melton, 60 A.D.2d 960). Mangano, P.J., Balletta, Copertino and Joy, JJ., concur.


Summaries of

Matter of Johnson v. Adduci

Appellate Division of the Supreme Court of New York, Second Department
Nov 15, 1993
198 A.D.2d 352 (N.Y. App. Div. 1993)

agreeing to take test but refusing to blow into tube of testing machine constitutes refusal to take test

Summary of this case from People v. Ayabaca
Case details for

Matter of Johnson v. Adduci

Case Details

Full title:In the Matter of CHRISTOPHER R. JOHNSON, Petitioner, v. PATRICIA B…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 15, 1993

Citations

198 A.D.2d 352 (N.Y. App. Div. 1993)
603 N.Y.S.2d 332

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