41 A.D.2d 583 | N.Y. App. Div. | 1973
Determination unanimously confirmed, without costs. Memorandum: Thé'record supports the finding of the', hearing officer that-petitioner was properly , arrested .for- driving while intoxicated,, and that she refused to submit to,a chemical blood;' test of the alcoholic content of her blood although she- had been, duly advised as required by-the statute of the consequences of such refusal.. After; leaving • the' Justice of the Peace and the custody of the arresting officer petitioner went home and "tried to get over my (her) state of confusion” and then,-before the expiration of two hour's from the time of her arrest, she offered to submit to the test, but the police then refused to administer it. Petitioner’s reliance on Matter of Jentzen v. Tofany (33 A D 2d 532) and Matter of Sweeney v. Tofany (30 A D 2d 934) is misplaced, for in those eases, the petitioner was either misled. or not properly informed concerning his rights and obligations. Here, the evi- ' deuce supports the determination that petitioner' was fully informed of her rights and the consequences of failure to take the test. The fact .'that the twohóur period had not expired when she changed her mind and offered to take the test does not help her. She had no right to delay the test and leave the custody of the officer and then return for the test." The two-hour statutory period for' administering the test (Vehicle and Traffic Law, § 1192, subd. 3) ■ was established as a criterion for determining the admissibility into evidence of the results of the test and not to confer additional privileges upon an arrested driver or to extend his rights with respect to submitting to the test (Matter of Dobbins v. Tofany, 38 A D 2d 870; Matter of Donahue v. Tofany, 33 A D 2d 590, mot. for. lv. to app. den. 25 N Y 2d 744). (Review of determination revoking operator’s license, transferred by order of Cayuga Special Term.) Present — Goldman, P. J., Del Vecchió, Witmer, Cardamone and Henry, JJ.