46 A.D.2d 967 | N.Y. App. Div. | 1974
Proceeding pursuant to 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 Albany County) to review a determination of the Commissioner of Motor Vehicles revoking petitioner’s license to operate a motor vehicle. On March 16, 1973 petitioner was arrested by a State Trooper for driving while intoxicated. After a motor vehicle hearing, his license was revoked for his refusal to submit to a chemical test to determine the alcoholic content of his blood. Petitioner maintains that the revocation was arbitrary, capricious and not based on substantial evidence; that the trooper did not have reasonable ground to believe petitioner had been driving while intoxicated; and finally, that he (lid not knowingly and willfully refuse to submit to the chemical test. An examination of the record clearly demonstrates that there is no merit to any of these contentions. The trooper testified he and another trooper saw petitioner driving on the wrong side of the road at night; that he talked to petitioner and detected a strong odor of alcohol; that when petitioner got out of his vehicle he staggered and swayed and appeared very sleepy; that he arrested petitioner for driving while intoxicated and read from a card the complete warning required by section 1194 of the Vehicle and Traffic Law. Although there is some conflict between the testimony of the trooper and petitioner, petitioner admitted to drinking three whiskey highballs. He also conceded that he refused to take the test. His explanation that he believed a blood test was required by law, and not chemical test by use of a breathalyzer, as requested by the trooper, lacks merit. In our view, there is substantial evidence to support the respondent’s determination. (Matter of Goebel v. T of any, 44 A D 2d 615.) Determination confirmed, and petition dismissed, without costs. Staley, Jr., J. P., Sweeney, Kane, Main and Reynolds, JJ., concur.