Dobbins v. Tofany
| Decision Date | 24 February 1972 |
| Citation | 38 A.D.2d 870,328 N.Y.S.2d 1004 |
| Parties | In the Matter of Charles R. DOBBINS, Petitioner, v. Vincent L. TOFANY, as Commissioner of Motor Vehicles of the State of New York, Respondent. |
| Court | New York Supreme Court — Appellate Division |
John S. Hall, Warrensburg (Ronald L. Newell, Warrensburg, of counsel), for petitioner.
Louis J. Lefkowitz, Atty. Gen. (Philip J. Fitzgerald, Albany, of counsel), for respondent.
Before STALEY, J.P., and COOKE, SWEENEY, SIMONS and KANE, JJ.
Proceeding under CPLR article 78 () to review a determination of the Commissioner of Motor Vehicles which revoked petitioner's operator's license pursuant to subdivision 1 of section 1194 of the Vehicle and Traffic Law ().
At about 11:15 in the evening of February 21, 1970, petitioner was arrested in Warrensburg by a Deputy Sheriff for a violation of subdivision 2 of section 1192 of the Vehicle and Traffic Law (), operating a motor vehicle while in an intoxicated condition. Although there is a conflict as to certain evidence, the officer testified that he asked petitioner if he would submit to a chemical test to determine the alcoholic content of his blood and warned him of the possible consequences upon failure to do so; that petitioner indicated his willingness for such a test and he was taken to a doctor's office in said community; that the physician returned to his office at about 11:45 that night and, when he proceeded to take a sample, petitioner said he wanted two officers other than those present to advise him; that, after an explanation of the procedure by the doctor and a 15 or 20 minute conversation, petitioner stated he would not submit until he talked to his lawyer; that the doctor then advised the deputy and his colleague that it was late and that, if they wanted a blood test, they should take petitioner to a hospital; and that then petitioner said he would take the test.
It is clear that the holder of a motor vehicle operator's license cannot condition his consent to take a chemical test on his first consulting with counsel (Matter of Brady v. Tofany, 36 A.D.2d 987, 320 N.Y.S.2d 880, affd. 29 N.Y.2d 680, 325 N.Y.S.2d 415, 274 N.E.2d 748) and the two-hour limitation of subdivision 3 of section 1192 of the Vehicle...
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