Johnson v. Adduci

—Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of Motor Vehicles of the State of New York, dated December 31, 1990, which, after a hearing, revoked the petitioner’s driver’s license. Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs. The record contains substantial evidence to support the Commissioner’s determination that the petitioner refused to submit to a breathalyzer test within the meaning of Vehicle and Traffic Law § 1194. At the time of the petitioner’s arrest for driving while intoxicated, a police officer sought to administer a breath test to him for intoxication, which he agreed to take. However, the administering officer testified at the hearing that the petitioner refused to blow into the tube of the testing machine, thereby preventing his breath from being tested. The officer’s testimony also established that the machine was in working order. The petitioner did not testify at the hearing. On this record, the Commissioner properly found that the petitioner’s actions constituted a refusal to take the breathalyzer test (see, Matter of Beaver v Appeals Bd., 68 NY2d 935, revg 117 AD2d 956 on dissenting opn, at 958; People v Adler, 353 145 AD2d 943; Matter of Van Sickle v Melton, 64 AD2d 846; Matter of Di Girolamo v Melton, 60 AD2d 960). Mangano, P. J., Balletta, Copertino and Joy, JJ., concur.