Gilman v. Passidomo

— Determination unanimously confirmed and petition dismissed, without costs. Memorandum: There is substantial evidence in the record to support the Commissioner’s determination that the police officer had reasonable grounds to believe that petitioner had been driving in an intoxicated condition and that he refused to submit to a blood test. The petitioner’s statement that he would submit to a breathalyzer test if he were taken to the police station does not excuse his refusal to submit to the blood test at the hospital. Vehicle and Traffic Law § 1194 authorized the police officer to decide the type of test to be administered; it did not provide an option to petitioner (see, Matter of Litts v Melton, 57 AD2d 1027, 1028; Matter of Cushman v Tofany, 36 AD2d 1000; Matter of Breslin v Hults, 20 AD2d 790). (Article 78 proceeding transferred by order of Supreme Court, Erie County, Wolf, J.) Present — Dillon, P. J., Callahan, Boomer and Schnepp, JJ.