Opinion
July 13, 1978
Appeal from the Steuben Supreme Court.
Present — Cardamone, J.P., Simons, Hancock, Jr., Denman and Schnepp, JJ.
Determination unanimously confirmed, without costs. Denman, J., not participating. Memorandum: Petitioner, Peter W. Van Sickle, instituted this article 78 proceeding to review a determination of respondent, James P. Melton, State Commissioner of Motor Vehicles, revoking petitioner's motor vehicle operator's license. The proof before the hearing referee revealed that the police had reasonable grounds to believe that petitioner was driving while intoxicated and that his arrest and the warning given him met the requirements of section 1194 Veh. Traf. of the Vehicle and Traffic Law. Petitioner admitted that the arresting officer informed him of his statutory rights and asked him to take a breathalyzer test. He testified that he assumed that he was under arrest and accompanied the officer to headquarters. He blew into the mouthpiece of the apparatus on five occasions without activating the machine. It is petitioner's contention that his conduct does not amount to a refusal to take the test. After reviewing this record we agree with the determination of the hearing referee, affirmed upon appeal to the Administrative Appeals Board of the New York State Department of Motor Vehicles, that his conduct did amount to a refusal and that there exists substantial evidence to support this conclusion. The officer who administered the breathalyzer test testified that the apparatus was in good working order both before and after petitioner was tested. He stated that he observed petitioner puff out his cheeks and his face turn red but at the same time he heard air come out of the corner of petitioner's mouth. Where the test fails for reasons attributable to petitioner, it is proper to find no consent by him to take it (Matter of Di Girolamo v Melton, 60 A.D.2d 960; see Matter of Kennedy v Melton, 62 A.D.2d 1152).