Opinion
July 9, 1982
Appeal from the Supreme Court, Erie County, Wolf, J.
Present — Dillon, P.J., Callahan, Boomer, Moule and Schnepp, JJ.
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 N.Y.2d 58, cert den 370 U.S. 912; Matter of Brady v. Tofany, 36 A.D.2d 987, affd 29 N.Y.2d 680).