Du Pree v. Foschio , 453 N.Y.S.2d 477 ( 1982 )

Determination unanimously confirmed and petition dismissed, without costs. Memorandum: Petitioner contends that he was improperly denied the opportunity to consult with his attorney on whether or not to submit to a breathalyzer test, and asks that the order revoking his operator’s license, based on his refusal to take the test, be vacated. Even if petitioner’s right to counsel was denied as he claims, the revocation order would stand. A license revocation is an administrative proceeding and the holder of an operator’s license cannot condition his consent to take the test on his first consulting with counsel (Matter of Finocchairo v Kelly, 11 NY2d 58, cert den 370 US 912; Matter of Brady v Tofany, 36 AD2d 987, affd 29 NY2d 680). (Article 78 proceeding transferred by order of Supreme Court, Erie County, Wolf, J.) Present — Dillon, P. J., Callahan, Boomer, Moule and Schnepp, JJ.