White v. Fisher
| Decision Date | 04 December 1975 |
| Citation | 49 A.D.2d 450,375 N.Y.S.2d 663 |
| Parties | In the Matter of Harry C. WHITE, Petitioner, v. Arnold FISHER, as Commissioner of Motor Vehicles of the State of New York, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Leonard E. Lombardi, White Plains, for petitioner.
Louis J. Lefkowitz, Atty. Gen. (Philip J. Fitzgerald and Ruth Kessler Toch, Albany, of counsel), for respondent.
Before HERLIHY, P.J., and SWEENEY, KANE, KOREMAN and LARKIN, JJ.
Petitioner was arrested for driving while intoxicated He was asked to submit to a chemical test, and was warned that his refusal could result in revocation of his operator's license. Petitioner agreed, but while enroute to a State Police substation in a patrol car, he told the trooper, without explanation, that he would not take the test. The trooper repeated the warning but petitioner still refused and the trooper then proceeded to the home of a judge to arraign him. During the course of petitioner's arraignment he began a discussion with the judge and with friends concerning the test and finally decided that he wanted to take the test. The judge asked the trooper if he would give the test but the trooper refused, stating he would not have the amount of time required.
At the hearing held pursuant to section 1194 of the Vehicle and Traffic Law, the trooper admitted that at the time of petitioner's last offer to take the test, more than an hour remained of the statutory two-hour period, that the breathalyzer could be warmed up and ready to use with a half hour to spare, and that he 'supposed' his refusal to administer the test was arbitrary. The petitioner testified that his refusal, made while in the patrol car, was because . He also testified that the trooper again told him 'that the refusal to take the test could result in the revocation of my license'. The Referee found that the petitioner's actions constituted a refusal to submit to the chemical test within the meaning of section 1194.
Petitioner, citing Matter of Jentzen v. Tofany, 33 A.D.2d 532, 314 N.Y.S.2d 297, argues that if a driver recants his refusal sufficiently within the statutory two-hour period, he has not refused to take the test within the meaning of section 1194. In Jentzen, however, no warning was given and it...
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Rossell v. City and County of Honolulu, 6160
...would take the sobriety test was itself adequate to manifest a definite refusal on his part to take any such test. White v. Fisher, 49 A.D.2d 450, 375 N.Y.S.2d 663 (1975); Dobbins v. Tofany, 38 A.D.2d 870, 328 N.Y.S.2d 1004 (1972). Furthermore, appellee's alleged disorderly behavior, which ......
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