Eyrich v. Jackson

267 A.D.2d 237, 699 N.Y.S.2d 316, 1999 N.Y. App. Div. LEXIS 12536

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 6, 1999
• Status: Published

Opinion

—Proceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Motor Vehicles Appeals Board, dated July 31, 1998, which affirmed a determination of an Administrative Law Judge, made after a hearing, that the petitioner had refused to submit to a chemical test to determine her blood alcohol level and revoked her driver’s license for six months.

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

There is substantial evidence to support the determination that the petitioner refused to submit to a chemical test to determine her blood alcohol level after being clearly and unequivocally provided with the statutory warning pursuant to Vehicle and Traffic Law § 1194 (2) (b) (see, Matter of Galante v Commissioner of Motor Vehicles of State of N. Y., 253 AD2d 763). The variance between the testimony of the arresting officer and that of the petitioner presented an issue of credibility to be resolved by the Administrative Law Judge (see, Matter of Berenhaus v Ward, 70 NY2d 436).

The petitioner’s remaining contentions are without merit. O’Brien, J. P., Thompson, Florio and Smith, JJ., concur.