Bell v. Tofany

43 A.D.2d 652, 349 N.Y.S.2d 824, 1973 N.Y. App. Div. LEXIS 3093

Opinion

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 Broome County) to review the revocation of petitioner’s driver’s license by the Commissioner of Motor Vehicles for refusal to submit to a chemical test to determine the alcoholic content of his blood. The petitioner contends that the record does not contain substantial evidence that the arresting officers warned him that his refusal to submit to a chemical test for intoxication might result in the revocation or suspension of his driving license and/or privileges whether or not he was found guilty of driving while intoxicated or impaired. However, the record contains the testimony of an arresting officer that the petitioner was given the warning required by section 1194 of the Vehicle and Traffic Law and the issue was at most one of credibility for the Referee. The petitioner’s contention that, upon this proceeding, there is some basis for submitting portions of the testimony of the arresting officer at the subsequent trial of the petitioner before a Magistrate upon charges of driving while impaired is frivolous. Determination confirmed and petition dismissed, without' costs. Herlihy, P. J., Cooke, Sweeney, Kane and Main, JJ.-, concur.