Manley v. Tofany

• Court: New York Supreme Court
• Writing for the Court: DAVID F. LEE, Jr.
• Citation: Manley v. Tofany, 335 N.Y.S.2d 338, 70 Misc.2d 910 (N.Y. Sup. Ct. 1972)
• Decision Date: 09 August 1972
• Parties: In the Matter of Kenneth E. MANLEY, Petitioner, v. Vincent L. TOFANY, Commissioner of Motor Vehicles of the State of New York, Respondent.

Page 338

335 N.Y.S.2d 338

70 Misc.2d 910

In the Matter of Kenneth E. MANLEY, Petitioner, v. Vincent L. TOFANY, Commissioner of Motor Vehicles of the State of New York, Respondent.

Supreme Court, Chenango County.

Aug. 9, 1972.

John R. Marshall, Jr., Norwich, for petitioner.

Louis J. Lefkowitz, Atty. Gen. (Sidney L. Grossman, Syracuse, of counsel), for respondent.

DAVID F. LEE, Jr., Justice.

Petitioner in this proceeding pursuant to article 78 of the CPLR to review 'all the proceedings, decision and action of the Commissioner of Motor Vehicles of the State of New York' seeks 'judgment annulling and setting aside the determination which revoked his motor vehicle operator's license; directing the Commissioner to return to petitioner, his * * * operator's license * * *'

The petition alleges, Inter alia:

'5. On March 21, 1972, the Commissioner of Motor Vehicles of the State of New York, through its Hearing Officer * * * held a motor vehicle hearing for refusing a chemical test, at the Courthouse in the City of Norwich, County of Chenango, State of New York. At this motor vehicle hearing, New York State Trooper W. A. Briggs, testified that petitioner's arrest was based upon him operating a motor vehicle while in an intoxicated condition at the driveway of the New York State Barracks at Norwich, New York. Also during the course of the said motor vehicle hearing, there was a failure of proof by New York State Trooper W. A. Briggs, that the chemical test for intoxication, your petitioner was requested to submit to, was authorized by the written rules and regulations of the New York State Police.

'10. That said charge set forth in the felony information attached hereto, was presented to a Chenango County Grand Jury which returned a No Bill on the said charge of felony Driving While Intoxicated.'

Petitioner was arrested on July 18, 1971 and accused of driving while intoxicated, subdivision 3 of section 1192 of the Vehicle and Traffic Law. The petitioner was accused of operating a motor vehicle while in an intoxicated condition, 'on the driveway of the New York State Police barracks', in the Town of North Norwich, Chenango County. The petition, also, states: 'On July 18, 1971 * * * on New York State Route 12 * * * petitioner's motor vehicle was stopped * * * and your petitioner was arrested for Driving While Intoxicated.' The memorandum submitted by petitioner's counsel notes and urges, among other things:

'Petitioner contends that the offense of Driving While Intoxicated cannot be committed in a driveway, since it is not a highway nor a private road. Therefore, petitioner was illegally arrested for driving while intoxicated and an illegal arrest cannot form the basis for revoking a license for refusing to submit to a chemical test for intoxication.

'Petitioner further contends that one element of proof in a refusal hearing is the proof of the rules and regulations of the New York State Police demonstrating the test the police officer is authorized to offer a motorist. Failure to prove such rules and regulations does not warrant a motor vehicle referee in revoking an operator's license for a refusal to submit to a chemical test for intoxication.

'* * * Revocation of the operator's license for refusal to submit to a chemical test for intoxication was not warranted since the State Police Officer failed to prove the rules and regulations of the New York State Police.

'* * * A refusal to submit to a chemical test for intoxication cannot be based upon an illegal arrest.'

The threshold question for determination is whether the arrest was lawful. Petitioner urges that '* * * petitioner's arrest for driving while intoxicated was illegal * * *' He further urges: '(I)f an arrest for driving while intoxicated is unlawful and invalid then a motorist cannot legally refuse to submit to a chemical test for intoxication.'

The papers submitted in support of the application assert that the determination was arbitrary and capricious and that the determination 'was not supported by substantial evidence.' It should be noted that, as counsel stated at the time of oral argument, questions of law, errors of law, only are raised; no issue specified in question four of section 7803 of the CPLR is raised.

Respondent's counsel urges in his memorandum:

'The fact that petitioner was arrested for driving while intoxicated on the driveway of the State Police Barracks should not invalidate his arrest. Section 1192(3) of the Vehicle and Traffic Law prohibits a person from driving while he is in an intoxicated condition anywhere in the State of New York.

'The recodification of the Vehicle and Traffic Law effected by Chapter 775 of the Laws of 1959 was merely a rearrangement of the former law. According to the report issued by the Temporary State Commission on Coordination of State Activities, which recommended and prepared the measure, the bill made no changes in substance, but only in arrangement. In the 1959 recodification, the prohibition against drunken driving was placed in Title VII which now includes Section 1100. However, since 1959, except for the case cited by petitioner in his beief (People v. Albright, Chenango County Court, decided June 7, 1972), there has been no case intimating or considering a suggestion that the renumbering and redistribution of these sections changed the rule of law reached in People v. Rue, 166 Misc. 845, (2 N.Y.S.2d 939) (City Court of Middletown, 1938) and People v. Taylor, 202 Misc. 265, (111 N.Y.S.2d 703) (City Magistrate's Court of City of New York, 1952).

'It is the conduct which is sought to be regulated rather than limited areas which are sought to be protected. * * *'

Subdivision 3 of section 1192 of the Vehicle and Traffic Law reads: 'No person shall operate a motor vehicle while he is in an intoxicated condition.' Section 1192 of the Vehicle and Traffic Law is included under title 7, Rules of the Road, and section 1100, entitled '(p)rovisions of title refer to vehicles upon the highways; exceptions', provides, in subdivision (a): 'The provisions of this title apply upon highways and upon private roads open to public motor vehicle traffic except where a different place is specifically referred to in a given section.' Section 118 of the Vehicle and Traffic Law defines 'highway': 'The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel'. The definition of '(p)rivate road' is found in section 133 of the Vehicle and Traffic Law: 'Every way or place in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner, but...