Opinion
847 TP 23-00737
11-17-2023
In the Matter of Christopher KROLL, Petitioner, v. NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, Respondent.
DIPASQUALE & CARNEY, BUFFALO (JASON R. DIPASQUALE OF COUNSEL), FOR PETITIONER. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (DOUGLAS E. WAGNER OF COUNSEL), FOR RESPONDENT.
DIPASQUALE & CARNEY, BUFFALO (JASON R. DIPASQUALE OF COUNSEL), FOR PETITIONER.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (DOUGLAS E. WAGNER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, MONTOUR, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed. Memorandum: Petitioner commenced this proceeding pursuant to CPLR article 78 seeking to annul the determination revoking his driver's license based on his refusal to submit to a chemical test following his arrest for driving while intoxicated (DWI). We confirm the determination. Contrary to petitioner's contention, the determination that petitioner twice refused to submit to a chemical test after receiving the requisite warnings is supported by substantial evidence (see Matter of Malvestuto v. Schroeder , 207 A.D.3d 1245, 1245-1246, 170 N.Y.S.3d 792 [4th Dept. 2022] ). The arresting officer's testimony at the hearing, along with his refusal report, which was entered in evidence, established that petitioner refused to submit to a chemical test after he was arrested for DWI and provided with two clear and unequivocal warnings of the consequences of such refusal (see id. at 1246, 170 N.Y.S.3d 792 ; see generally Vehicle and Traffic Law § 1194 [2] [b] ).
We reject petitioner's contention that his level of incapacitation, which prompted the arresting officer to admit him to a treatment center for emergency services pursuant to Mental Hygiene Law § 22.09 (b) (2), rendered him incapable of providing a chemical test refusal. " Vehicle and Traffic Law § 1194 (2) does not require a knowing refusal by the petitioner" ( Matter of Hickey v. New York State Dept. of Motor Vehs. , 142 A.D.3d 668, 669, 36 N.Y.S.3d 720 [2d Dept. 2016] ). Further, "the Legislature, concerned with avoiding potentially violent conflicts between the police and drivers arrested for intoxication, ... provide[d] that the police must request the driver's consent [for a chemical test], advise [them] of the consequences of refusal and honor [their] wishes if [they] decide[ ] to refuse, but ... dispense[d] with [those] requirements when the driver is unconscious or otherwise incapacitated to the point where [they] pose[ ] no threat " ( People v. Kates , 53 N.Y.2d 591, 596, 444 N.Y.S.2d 446, 428 N.E.2d 852 [1981] [emphasis added]). Here, inasmuch as the arresting officer deemed petitioner in need of emergency services due to the "likelihood [of] ... harm to [himself] or to others" ( Mental Hygiene Law § 22.09 [b] [2] ), it cannot be said that petitioner posed no threat at the time the chemical tests were requested and the refusal warnings were issued. Moreover, petitioner's interpretation of the statute "would lead to the absurd result that the greater the degree of intoxication of an automobile driver, the less the degree of [the driver's] accountability" ( Matter of Carey v. Melton , 64 A.D.2d 983, 983, 408 N.Y.S.2d 817 [2d Dept. 1978] ; see Kates , 53 N.Y.2d at 596, 444 N.Y.S.2d 446, 428 N.E.2d 852 ; Hickey , 142 A.D.3d at 669, 36 N.Y.S.3d 720 ).