Opinion
June 16, 1994
Appeal from the Supreme Court, Broome County (Rose, J.).
Petitioner was arrested by State Trooper James Mastrondi on April 5, 1992 for driving while intoxicated. Mastrondi appropriately advised petitioner of the requisite warnings concerning his obligation to submit to a chemical test or suffer the loss of his driving privileges (see, Vehicle and Traffic Law § 1194 [b], [c]). Petitioner contended that he had two hours in which to submit to the chemical test and sought to condition his submission upon consultation with his attorney. He was informed that he could not condition the test, that he would have ample time to communicate with his attorney after the test and that his continuation of conditions before submission would be deemed a refusal. Mastrondi considered petitioner's persistence to be a refusal. Following an administrative hearing (see, Vehicle and Traffic Law § 1194 [b]), petitioner was ultimately found to have refused to submit to a chemical test and his driver's license was revoked pursuant to Vehicle and Traffic Law § 1194, and a $200 civil penalty was assessed.
Petitioner commenced this CPLR article 78 proceeding challenging the determination as erroneous because he was prevented from contacting his attorney prior to being required to submit, or refuse to submit, to the chemical test. Supreme Court analyzed the hearing testimony (but see, CPLR 7803; 7804 [g]; Collana v. Perales, 123 A.D.2d 493) and concluded that petitioner had a right to counsel and that conditioning his submission to the test upon consultation with his attorney was not a refusal. Supreme Court therefore annulled respondent's determination and restored petitioner's driver's license. Respondent has appealed and we reverse.
Having been lawfully arrested for driving while intoxicated, petitioner was obligated to submit to a chemical test to determine his blood alcohol level or suffer the loss of his driving privileges (see, Vehicle and Traffic Law § 1194). It is well established that "[i]n making his election, the individual may 'not condition his consent on first consulting with counsel'" (Matter of Gagliardi v. Department of Motor Vehicles, 144 A.D.2d 882, 884, lv denied 74 N.Y.2d 606, quoting Matter of Brady v Tofany, 36 A.D.2d 987, affd 29 N.Y.2d 680; see also, Matter of Finocchairo v. Kelly, 11 N.Y.2d 58, cert denied 370 U.S. 912; Matter of Smith v. Passidomo, 120 A.D.2d 599; Matter of Du Pree v Foschio, 89 A.D.2d 800; Matter of Story v. Hults, 27 A.D.2d 745, affd 19 N.Y.2d 936). While indeed, in a criminal proceeding, the failure to comply with a defendant's request for assistance of counsel may result in the suppression of evidence obtained (see, People v. Shaw, 72 N.Y.2d 1032; People v. Gursey, 22 N.Y.2d 224), the same consequence does not apply in the context of an administrative license revocation proceeding (see, Matter of Finocchairo v. Kelly, supra).
Petitioner's contention that there was ample time to permit him to contact his attorney misinterprets the two-hour limitation provided by Vehicle and Traffic Law § 1194, which is solely for the purpose of qualifying the results of the test for admission into evidence and not to permit an individual to delay his test (Matter of Viger v. Passidomo, 65 N.Y.2d 705, 707; Matter of White v. Fisher, 49 A.D.2d 450, 451). Respondent's determination was supported by the evidence and the law, and must be confirmed.
Cardona, P.J., Mikoll, Mercure and Casey, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, determination confirmed and petition dismissed.