Opinion
November 3, 1977
Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court at Special Term, entered in Washington County) to review a determination of the Commissioner of Motor Vehicles revoking petitioner's license to operate a motor vehicle. On June 30, 1974, petitioner was arrested for driving while intoxicated, and the sole question presented for our review is whether or not the commissioner's subsequent revocation of his driver's license was proper. We hold that it was. It is conceded that, following his arrest, petitioner twice refused to take a breathalyzer test after having previously been warned by the police, in accordance with section 1194 Veh. Traf. of the Vehicle and Traffic Law, that his failure to do so could result in the loss of his license whether or not he was ultimately convicted of driving while intoxicated. In response to a question by petitioner, a police officer further stated to him that he would not necessarily lose his license if he did not submit to the test. Since it was the commissioner's duty to finally determine what penalty would be imposed upon petitioner for his refusal, this latter statement of the police officer was correct and clearly did not serve to nullify or render ineffective the earlier statutory warning given to petitioner. Accordingly, the revocation of petitioner's license must be confirmed. Determination confirmed, and petition dismissed, without costs. Greenblott, J.P., Sweeney, Kane, Mahoney and Main, JJ., concur.