Opinion
June 30, 1970
Proceeding under article 78 of the CPLR (transferred to the Appellate Division by an order of the Supreme Court, entered in Schenectady County) to review a determination of the Commissioner of Motor Vehicles revoking petitioner's driver's license upon finding that petitioner, after being arrested upon a charge of operating a motor vehicle while intoxicated (Vehicle and Traffic Law, § 1192), refused to submit to a chemical test to determine the alcoholic content of his blood (Vehicle and Traffic Law, § 1194, subd. 1). We find no basis on the instant record to disturb the determination of the Commissioner. The record amply supports the factual finding that petitioner was validly arrested for driving while intoxicated ( Matter of Prudhomme v. Hults, 27 A.D.2d 234) and that he refused to submit to the required chemical test to determine the alcoholic content of his blood. The Commissioner could properly find that petitioner's continued refusal to answer when asked on four occasions if he would submit to the blood test and his subsequent arbitrary insistence that the sample be taken from his hip rather than his arm constituted a refusal. Section 1194 (subd. 1) of the Vehicle and Traffic Law expressly declares that the chemical test is "administered at the direction of a police officer" and the accused cannot prescribe what type of test and under what circumstances he will submit to it where the police officer's directions are, as here, reasonable and normal. Petitioner's additional arguments are not supported by the record and, accordingly, the Commissioner's determination is confirmed. Determination confirmed and petition dismissed, without costs. Herlihy, P.J., Reynolds, Aulisi, Staley, Jr., and Greenblott, JJ., concur in memorandum by Reynolds, J.