Geary v. Commissioner of Motor Vehicles of State

• Decision Date: 28 February 1983
• Parties: In the Matter of the Application of Joseph P. GEARY, Respondent, v. COMMISSIONER OF MOTOR VEHICLES OF the STATE of New York, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 494

459 N.Y.S.2d 494

92 A.D.2d 38

In the Matter of the Application of Joseph P. GEARY, Respondent, v. COMMISSIONER OF MOTOR VEHICLES OF the STATE of New York, Appellant.

Supreme Court, Appellate Division Fourth Department.

Feb. 28, 1983.

Robert Abrams, Atty. Gen., Albany (Patrick McCormack, Asst. Atty. Gen., Buffalo, of counsel), for appellant.

Robert J. Lane, Buffalo, for respondent.

Before DILLON, P.J., and CALLAHAN, DOERR, BOOMER and MOULE, JJ.

CALLAHAN, Justice.

On March 10, 1980 petitioner Joseph P. Geary was arrested for driving while intoxicated in violation of subdivision 3 of section 1192 of the Vehicle and Traffic Law. Petitioner was advised of his rights and requested to submit to a chemical test of his breath for alcohol. He made no response at that time. Approximately twenty minutes later petitioner was again advised of his rights and was once again asked to submit to a chemical test of his breath. At this time he unequivocally refused the test, stating to the arresting officer, "No way". Notice of this refusal was forwarded to the respondent. Approximately seven and a half months later, petitioner was notified that a hearing would be held pursuant to section 1194 of the Vehicle and Traffic Law on October 27, 1980 to determine whether his operator's license should be revoked because of his refusal to submit to the chemical test. The hearing was adjourned at petitioner's request and rescheduled for December 3, 1980. On the adjourned date, petitioner moved to dismiss the charge on the grounds that he was not afforded a hearing within a reasonable time as required by subdivision 1 of section 301 of the State Administrative Procedure Act. The motion was denied. After the hearing at which only the arresting officer testified, petitioner's driver's license was revoked for failure to submit to a chemical test pursuant to the provisions of section 1194 of the Vehicle and Traffic Law. This determination was upheld on appeal by the Administrative Appeals Board and was approved as recommended by the respondent Commissioner. A stay of the revocation was granted and petitioner has retained his license since the date of his arrest.

Petitioner instituted this proceeding pursuant to CPLR article 78 seeking to annul the revocation order on the ground that he was denied his right to a hearing and determination within a reasonable time under the State Administrative Procedure Act. In granting the petition and annulling the revocation of petitioner's license, Special Term held that "by delaying the scheduling of petitioner's hearing for over seven months, the respondent has failed to comply with the statutory directive to afford the petitioner an opportunity for a hearing within a reasonable time (State Administrative Procedure Act, § 301[1] )."

Prior to the enactment of the State Administrative Procedure Act (L.1975, c. 167, § 1, effective September 1, 1976), this Court held that a 17 month delay in scheduling a hearing pursuant to subdivision 2 of section 1194 of the Vehicle and Traffic Law to determine whether petitioner's license should be revoked for his refusal to take a chemical test did not violate his right to a speedy trial (Matter of Minnick v. Melton, 53 A.D.2d 1016, 386 N.Y.S.2d 488). Petitioner contends that Minnick is not controlling since it predated the adoption of the State Administrative Procedure Act, a legislative enactment mandating administrative hearings within a "reasonable time" (State Administrative Procedure Act § 301, subd. 1). We agree that Minnick is not dispositive of this issue; however, its rationale remains persuasive and we find nothing in the intent of this legislation which abrogates that rationale.

In its decision, Special Term noted that "section 1194 of the Vehicle and Traffic Law has been amended to meet the objection of the public, who was concerned with the consequences of alcohol related driving, to delays of six months or more in the scheduling of refusal hearings (Matter of Maxwell v. Comr. of Motor Veh. p 69 )." The statute was designed to enable the authorities to deal promptly and effectively with the scourge of drunken drivers by immediate revocation of their licenses either upon chemical proof of intoxication or upon refusal to submit to the blood test (People v. Craft, 28 N.Y.2d 274, 278, 321 N.Y.S.2d 566, 270 N.E.2d 297). Time schedules specified in similar legislation for performance of certain acts on the part of an administrative agency have been held to be directory only (see Matter of Sarkisian Bros. v. State Div. of Human Rights, 48 N.Y.2d 816, 424 N.Y.S.2d 125, 399 N.E.2d 1146; see also Matter of Utica Cheese v. Barber 49 N.Y.2d 1028, 1030, 429 N.Y.S.2d 405, 406 N.E.2d 1342). Revocation of petitioner's license here constitutes a civil and not a criminal sanction (Matter of Barnes v. Tofany, 27 N.Y.2d 74, 313 N.Y.S.2d 690, 261...