Opinion
May 8, 1995
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.
The Commissioner's determination that the petitioner refused to consent to a chemical test to determine her blood alcohol level after being clearly and unequivocally provided with the statutory warning pursuant to Vehicle and Traffic Law § 1194 (2) (b) is supported by substantial evidence (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 N.Y.2d 176, 180; Matter of Gatto v Adduci, 182 A.D.2d 760). The conflict between the testimony of the arresting officer and that of the petitioner presented an issue of credibility to be resolved by the Administrative Law Judge (see, Matter of Collins v Codd, 38 N.Y.2d 269; Matter of Holland v Commissioner of N.Y. State Dept. of Motor Vehicles, 213 A.D.2d 637; Matter of Smith v Passidomo, 120 A.D.2d 599). The petitioner's claim that her request to speak to an attorney should not be construed as a refusal to consent to a chemical test is without merit under the circumstances of this case. For the purposes of Vehicle and Traffic Law § 1194, an individual may not condition his or her consent to a chemical test to determine blood alcohol content on first consulting with counsel (see, Matter of Cook v Adduci, 205 A.D.2d 903; 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).
The petitioner's remaining contention is unpreserved for appellate review. Sullivan, J.P., O'Brien, Thompson and Hart, JJ., concur.