White v. Melton
| Decision Date | 20 January 1978 |
| Citation | 401 N.Y.S.2d 664,60 A.D.2d 1000 |
| Court | New York Supreme Court — Appellate Division |
| Parties | Application of Wilbur WHITE, Jr., Petitioner, v. James P. MELTON, Commissioner of Motor Vehicles, Respondent. |
Godinho & Hargesheimer, Hamburg (Joseph E. Orsini, Hamburg, of counsel) by Joseph E. Orsini, Hamburg, for petitioner.
Louis J. Lefkowitz, Atty. Gen., Albany, by Elaine L. Weiss, Niagara Falls, for respondent.
Before MOULE, J. P., and CARDAMONE, SIMONS, HANCOCK and DENMAN, JJ.
This is a proceeding under CPLR Article 78 transferred by order of the Supreme Court, Chautauqua County, 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.
Petitioner was arrested at about 2 a. m. for driving while intoxicated and was asked to submit to a chemical test to determine the amount of alcohol in his system. He was warned that his refusal could result in revocation of his operator's license. He was informed that he should not place any object in his mouth. Neither at that point nor at any subsequent time did he verbally either consent or refuse to take the test. When the arresting officer and petitioner arrived at the Sheriff's Department, petitioner put a cigarette in his mouth, which was removed by one of the deputies. He was once again informed that he should not place any object in his mouth prior to taking the test. Leaving petitioner in one room, the arresting officer went into another room to turn on the Breathalyzer. When he returned, he observed petitioner with gum and a cigarette in his mouth. He told him that because of the two prior warnings, he considered his insistence on placing something in his mouth a refusal to take the test. Petitioner made no comment. Petitioner contends that his conduct should not be deemed a refusal inasmuch as he never stated that he would not participate in the test. He contends further that it was arbitrary on the part of the police officer to construe his behavior as a refusal and not to give him the test in view of the fact that the incident with the gum and cigarette took place only ten minutes after his arrest and well within the statutory two-hour period for administering the test.
The two-hour limitation provided by Subdivision 1 of Section 1194 of the Vehicle and Traffic Law is for the purpose of qualifying the results of the test for admission into evidence, and not necessarily to confer additional privileges upon a defendant, or to extend his...
To continue reading
Request your trial
-
People v. Atkins
...(see, e.g., People v. Brol, 81 A.D.2d 739, 438 N.Y.S.2d 424; People v. Keane, 76 A.D.2d 963, 428 N.Y.S.2d 972; Matter of White v. Melton, 60 A.D.2d 1000, 401 N.Y.S.2d 664; Matter of White v. Fisher, 49 A.D.2d 450, 375 N.Y.S.2d The provision enacting a two-hour time limit is thus quite disti......
-
People v. Ali, AP-3
...be received in evidence against the operator." People v. Brol, 81 A.D.2d 739, 740, 438 N.Y.S.2d 424 (1981). See also White v. Melton, 60 A.D.2d 1000, 401 N.Y.S.2d 664 (1978); Jentzen v. Tofany, 33 A.D.2d 532, 314 N.Y.S.2d 297 Different panels in the Appellate Division, Third Department have......
-
People v. Massong
...Matter of Van Sickle v. Melton, 64 A.D.2d 846; Matter of Di Girolamo v. Melton, 60 A.D.2d 960, 401 N.Y.S.2d 893; Matter of White v. Melton, 60 A.D.2d 1000, 401 N.Y.S.2d 664; Matter of Cushman v. Tofany, 36 A.D.2d 1000, 321 N.Y.S.2d 831). Pretending to be unconscious in our view would be con......
-
Dykeman v. Foschio
...sat down and smoked the cigarette. We conclude that petitioner's argument in this regard is without merit (see Matter of White v. Melton, 60 A.D.2d 1000, 401 N.Y.S.2d 664). The determination must be Determination confirmed, and petition dismissed, without costs. ...