Combes v. Kelly

• Decision Date: 11 June 1956
• Citation: 152 N.Y.S.2d 934,2 Misc.2d 491
• Parties: Robert E. COMBES, Petitioner, v. Joseph P. KELLY, as Commissioner of Motor Vehicles of the State of New York, Respondent, Pursuant to Article 78 of the Civil Practice Act.
• Court: New York Supreme Court

Page 934

152 N.Y.S.2d 934

2 Misc.2d 491

Robert E. COMBES, Petitioner, v. Joseph P. KELLY, as Commissioner of Motor Vehicles of the State of New York, Respondent, Pursuant to Article 78 of the Civil Practice Act.

Supreme Court, Equity Term, Niagara County.

June 11, 1956.

Richard D. Doherty, Niagara Falls, for petitioner.

Jacob K. Javits, Atty. Gen. (Alfred B. Silverman, Buffalo, of counsel), for respondent.

REGIS O'BRIEN, Justice.

Motion for an order to direct the Commissioner of Motor Vehicles to reinstate petitioner's license, which had been revoked on February 23, 1956. Also motion (made upon the argument) to amend the petition by striking therefrom the allegations of paragraph 16, subdivisions (b), (c) and (e), which raise the issue of the sufficiency and weight of the evidence upon which the Commissioner revoked said license. Cross motion by respondent to dismiss the proceeding upon the ground that there is no determination to review, and that the revocation was mandatory because of the petitioner's refusal to submit to a chemical test to determine the alcoholic content of his blood after having been arrested by a police officer, who had reasonable grounds to believe that he had been driving while in an intoxicated condition and had an accident.

It appears, among other things, in this proceeding; that on November 23, 1955, the petitioner was operating an automobile in the Town of Lewiston, New York and came into collision with another motor vehicle at the intersection of Lewiston Road and Hyde Park Boulevard, both being public highways; that about ten minutes after the accident, the State Troopers arrived at the scene and one of them arrested the petitioner for violating Section 70, Subdivision 5 (driving while intoxicated) of the Vehicle and Traffic Law; that after his arrest the petitioner consented to submit to the chemical test for which provision is made in Section 71-a of said law, but upon arrival at the State Police Barracks, at Lewiston, New York, he refused to supply the sample of urine needed to complete said test; that subsequently and on January 24, 1956 a hearing was held by a Motor Vehicle Referee to determine if the petitioner's license to operate a motor vehicle should be revoked and thereafter, under date of February 23, 1956, based upon said hearing and the petitioner's refusal to submit to the chemical test, as aforesaid, the Commissioner of Motor Vehicles revoked said license.

Prior to said hearing before the Motor Vehicle Referee, the petitioner appeared before a Justice of the Peace of the Town of Lewiston on the trial of the criminal charge of violating said Section 70, Subdivision 5 of the Vehicle and Traffic Law, as aforesaid, and was acquitted.

The petitioner's attorney argues that said acquittal deprived the Motor Vehicle Commissioner of any legal basis for suspending or revoking the petitioner's operating license.

The contention is not sound. The acquittal had no such effect. The trial over which the Justice of the Peace presided was on a criminal charge. In it the petitioner was presumed to be innocent and the burden was upon the prosecution to establish his guilt beyond a reasonable doubt.

'The rule that a charge must be proved beyond a reasonable doubt, applicable in criminal cases, does not apply to departmental hearings before administrative or executive bodies * * *'. Schnitzler v. Casey, 283 App.Div. 1092, 131 N.Y.S.2d 554, 555.

The proceeding which we are discussing 'is a separate and distinct statutory proceeding based upon the driver's refusal to submit to the test and his acquittal does not preclude this action against him under another law providing for licensing penalty'. Anderson v. Macduff, 208 Misc. 271, 143 N.Y.S.2d 257, 259.

The petitioner claims that the decision in the Anderson case is not applicable because his arrest was unlawful, while in the Anderson case it was lawful.

The opinion in the Anderson case does not state if the offense (a misdemeanor) was, or was not, committed in the presence of the arresting officer. It merely relates that 'on September 2, 1954, the petitioner was arrested * * * and charged with driving an automobile while intoxicated'. It then states that 'the arresting officer requested the petitioner to submit to a blood test but this was refused by the petitioner who stated that he preferred to go before the judge'.

Based upon the contention that his arrest was unlawful, the petitioner argues that the request to submit to the chemical test was invalid.

The alleged offense is a misdemeanor, Section 70, Subdivision 5, Vehicle and Traffic Law.

Generally, an arrest for a misdemeanor, must be made upon a warrant, unless committed in the presence of the arresting officer, Section 177, Code of Criminal Procedure.

An exception to the general rule, however, is made in relation to an arrest for an alleged violation of Section 70, Subdivision 5 of the Vehicle and Traffic Law. It is provided in Subdivision 5-c of the same section that an arrest for an alleged violation of said Subdivision 5, Subdivision 5-a ('leaving scene of accident without reporting') and Subdivision 5-b ('leaving scene of injury to certain animals without reporting') may be made by a peace officer without a warrant, 'in case of either of the following...