Clancy v. Kelly , 180 N.Y.S.2d 923 ( 1958 )

Proceeding under article 78 of the Civil Practice Act to review a determination of the Commissioner of Motor Vehicles. The petitioner’s chauffeur’s license has been revoked after a hearing by the respondent Commissioner of Motor Vehicles for a refusal to submit to a chemical test to determine the alcoholic content of blood following his arrest for driving while intoxicated. In this article 78 proceeding to review the determination the petition stated the petitioner was not intoxicated and further states unequivocally that “At no time” did any police officer “request me to submit to a chemical test to determine the alcoholic content of my blood ”, The testimony of police officers at the hearing before respondent’s Referee was that on the basis of their observations of petitioner’s voice, speech, eyes, breath and gait he was in their opinion intoxicated. This meets the preliminary statutory requirement for the request by the arresting officer that a test for alcohol be taken by the driver, i.e., “ reasonable grounds to believe ” that the person was “driving” in an intoxicated condition. (Vehicle and Traffic Law, § 71-a, subd. 1.) The police officers also testified that petitioner on request refused to take the test for alcohol. Although the petitioner" denied this request' flatly, the actual testimony of petitioner before the Referee was quite different. He testified “ they asked me if I wanted to take a test and I answered * * * I got the smell of beer on my breath * * *is there any sense in taking the test?” The Referee and the commissioner were justified in finding the statu, tory conditions requiring revocation of the license had been established. Determination unanimously confirmed, without costs. Present — Poster, P. J., Rergan, Gibson, Herlihy and Reynolds, JJ.