Opinion
TP 02-02693
March 21, 2003.
CPLR article 78 proceeding transferred to this Court by an order of Supreme Court, Seneca County (Bender, J.), entered November 25, 2002, seeking to compel respondents to restore petitioner's operator's license.
BOYLE ANDERSON, P.C., AUBURN (MAXSEN D. CHAMPION Of Counsel), for Petitioner.
ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (ROBERT M. GOLDFARB OF Counsel), For Respondents.
PRESENT: PINE, J.P., SCUDDER, KEHOE, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the determination be and the same hereby is unanimously confirmed without costs and the petition is dismissed.
Memorandum:
The determination that petitioner, by her conduct, refused to submit to a chemical test to determine her blood alcohol level is supported by substantial evidence (see Matter of Di Girolamo v. Melton, 60 A.D.2d 960). Where a chemical test fails "for reasons attributable to petitioner, it is proper to find no consent by [her] to take it" (Matter of Van Sickle v. Melton, 64 A.D.2d 846, 846; see Di Girolamo, 60 A.D.2d 960). In this case, the Administrative Law Judge was entitled to credit the testimony of police officers that petitioner refused to comply over the testimony of petitioner that she was physically unable to comply, and that credibility determination should not be disturbed (see Matter of Beaver v. Appeals Bd. of Admin. Adjudication Bur., State Dept. of Motor Vehs., 68 N.Y.2d 935, revg on dissenting mem 117 A.D.2d 956, 958-959; see generally Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443-444). We note that here, as in Beaver, there was no testimony to establish that petitioner's "lung capacity was insufficient for the purposes of the breathalyzer test" (Beaver, 117 A.D.2d at 959 [dissenting mem]).