Sweeney v. Tofany

Appellate Division of the Supreme Court of New York

Sweeney v. Tofany

30 A.D.2d 934, 293 N.Y.S.2d 876, 1968 N.Y. App. Div. LEXIS 3273

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 27, 1968

StatusPublished

Cited by6 cases

This text of 30 A.D.2d 934 (Sweeney v. Tofany) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sweeney v. Tofany, 30 A.D.2d 934, 293 N.Y.S.2d 876, 1968 N.Y. App. Div. LEXIS 3273 (N.Y. Ct. App. 1968).

Pincite

Opinion

Determination unanimously annulled, without costs. Memorandum: Petitioner was involved in an automobile accident on April 19, 1967 at about 1:10 a.m. At 1:15 a.m. he was arrested by a police officer who asked him if he wished to submit to an alcohol test, and told him that it was not mandatory for him to do so. Petitioner said that he would like to speak to an attorney and did not wish to take the test. The accident occurred within one half mile of the office of Justice of the Peace Hall, to whom the officer then took petitioner, arriving there at 2:10 a.m. for arraignment. During the arraignment Justice Hall advised petitioner that if he refused to take the test, suspension of his license was mandatory. Petitioner thereupon agreed to take the test. At Justice Hall’s request the officer called the police barracks to have the test given; but the officer there refused to arrange for the test on the ground that petitioner had already refused to take such test. We find that petitioner did not make an understanding refusal to take the test. The request made of him by the officer misled petitioner to believe that the test was optional, and that no penalty would result from refusal to take it. As soon as he learned that this was not the case, he agreed to submit.to the test. It is apparent that he acted in good faith; and his unqualified offer was made within one hour after the accident and less than an hour after his arrest so that no prejudice resulted. His original refusal to take the test was not made to gain time; and more than an hour remained in which a proper test could have been given within the statutory time (Vehicle and Traffic Law, § 1192, subd. 3). This case is, therefore, clearly distinguishable from Matter of Lundin v. Hults (29 A D 2d 581); Matter of Neet v. Hults (26 A D 2d 970); Matter of McKenna v. Hults (25 A D 2d 951) and Matter of Pettengill v. Hults (21 A D 2d 853). (Review of determination revoking petitioner’s driver’s license, transferred by order of Onondaga Special Term.) Present — Williams, J. P., Goldman, Marsh, Witmer and Henry, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Determination unanimously annulled, without costs. Memorandum: Petitioner was involved in an automobile accident on April 19, 1967 at about 1:10 a.m. At 1:15 a.m. he was arrested by a police officer who asked him if he wished to submit to an alcohol test, and told him that it was not mandatory for him to do so. Petitioner said that he would like to speak to an attorney and did not wish to take the test. The accident occurred within one half mile of the office of Justice of the Peace Hall, to whom the officer then took petitioner, arriving there at 2:10 a.m. for arraignment. During the arraignment Justice Hall advised petitioner that if he refused to take the test, suspension of his license was mandatory. Petitioner thereupon agreed to take the test. At Justice Hall’s request the officer called the police barracks to have the test given; but the officer there refused to arrange for the test on the ground that petitioner had already refused to take such test. We find that petitioner did not make an understanding refusal to take the test. The request made of him by the officer misled petitioner to believe that the test was optional, and that no penalty would result from refusal to take it. As soon as he learned that this was not the case, he agreed to submit.to the test. It is apparent that he acted in good faith; and his unqualified offer was made within one hour after the accident and less than an hour after his arrest so that no prejudice resulted. His original refusal to take the test was not made to gain time; and more than an hour remained in which a proper test could have been given within the statutory time (Vehicle and Traffic Law, § 1192, subd. 3). This case is, therefore, clearly distinguishable from Matter of Lundin v. Hults (29 A D 2d 581); Matter of Neet v. Hults (26 A D 2d 970); Matter of McKenna v. Hults (25 A D 2d 951) and Matter of Pettengill v. Hults (21 A D 2d 853). (Review of determination revoking petitioner’s driver’s license, transferred by order of Onondaga Special Term.) Present — Williams, J. P., Goldman, Marsh, Witmer and Henry, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

30 A.D.2d 934, 293 N.Y.S.2d 876, 1968 N.Y. App. Div. LEXIS 3273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sweeney-v-tofany-nyappdiv-1968.

Opinion

Related

Cite This Page — Counsel Stack