O'Brien v. Melton

61 A.D.2d 1091, 403 N.Y.S.2d 353, 1978 N.Y. App. Div. LEXIS 10776

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Saratoga County) to review a determination of the Commissioner of Motor Vehicles which revoked petitioner’s driver’s license. Petitioner was arrested during the early morning hours of August 30, 1975 for driving while intoxicated after the automobile he was operating collided with a State Police vehicle stopped on the highway with its emergency lights flashing. The only issue for our determination is whether there is substantial evidence to support respondent’s determination that petitioner thereafter refused to take the required chemical test (Vehicle and Traffic Law, § 1194). The record discloses that in the course of unsuccessful efforts to contact his attorney, petitioner was undecided about taking that test, but finally did state unequivocally that he would not. His later change of mind would not, under the circumstances presented, suffice to undo that refusal (see Matter of Burns v Melton, 59 AD2d 975; Matter of White v Fisher, 49 AD2d 450). Determination confirmed, and petition dismissed, without costs. Sweeney, J. P., Kane, Staley, Jr., Larkin and Mikoll, JJ., concur.