9 A.D.2d 840 | N.Y. App. Div. | 1959
Proceeding under article 78 of the Civil Practice Act to review a determination of the Commissioner of Motor Vehicles revoking petitioner’s chauffeur’s license for refusal to submit to a chemical test to determine the alcoholic content of his blood following his arrest for driving while intoxicated. (Vehicle and Traffic Law, § 71-a, suhd. 1.) The contention in petitioner’s brief that he was not, as the statute requires, “placed under arrest” before the request for a test was made, was not argued but the evidence is clear that the arrest preceded the request. Upon such arrest petitioner was taken to a division station house and he there refused a request to submit to the test. While there, he asked permission to use a telephone. He does not dispute a patrolman’s testimony, first, that the desk sergeant told him he could use a telephone at police headquarters, where he was about to be taken and, second, that petitioner did not state the purpose of the telephone call that he wished to make. At the hearing, petitioner testified, in substance, that he wanted to use the telephone to arrange for his own doctor to be present, as the statute permits, and further testified that he would have submitted to a test in the presence of his own physician. Apparently such tests were not given at the station house and he was taken to headquarters where a request to submit to the test was again made and refused. As has been noted, the patrolman’s testimony that petitioner was told at the station house that he might use a telephone at headquarters was not contradicted, but there was not, upon the hearing, even a suggestion that at headquarters petitioner either requested permission to telephone or advised anyone that he wished his physician or any other person present. Under these circumstances we find no violation of the statute nor any infringement of petitioner’s rights. Determination unanimously confirmed, without costs. Present — Foster, P. J., Bergan, Coon, Gibson and Herlihy, JJ.