Opinion
527 TP 14-01847
07-02-2015
In the Matter of Richard H. PEESO, Petitioner, v. Barbara J. FIALA, Commissioner, New York State Department of Motor Vehicles, Respondent.
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of Counsel), for Petitioner. Eric T. Schneiderman, Attorney General, Albany (Owen Demuth of Counsel), for Respondent.
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of Counsel), for Petitioner.
Eric T. Schneiderman, Attorney General, Albany (Owen Demuth of Counsel), for Respondent.
PRESENT: CENTRA, J.P., CARNI, SCONIERS, VALENTINO, and WHALEN, JJ.
Opinion
MEMORANDUM:Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination revoking his driver's license based on his refusal to submit to a chemical test following his arrest for driving while intoxicated. Petitioner contends that the determination was affected by an error of law because the report of refusal did not indicate that petitioner's intoxication was voluntary and the report, thus, was insufficient to establish reasonable grounds that he was driving while intoxicated. We reject that contention. We conclude that the report of refusal submitted at the hearing established that the police officer had reasonable grounds to believe that petitioner had been driving while intoxicated based upon his observations of petitioner, including petitioner's failure of field sobriety tests (see Gagliardi v. Department of Motor Vehs., 144 A.D.2d 882, 883–884, 535 N.Y.S.2d 203, lv. denied 74 N.Y.2d 606, 544 N.Y.S.2d 820, 543 N.E.2d 85 ; Matter of Smith v. Commissioner of Motor Vehs., 103 A.D.2d 865, 866, 478 N.Y.S.2d 103 ). At the hearing, the arresting officer's report of refusal was received in evidence and read into the record. That report establishes that the officer stopped the vehicle driven by petitioner based on the vehicle's speed, which exceeded the posted limit by 22 miles per hour, and a lane violation. After stopping the vehicle, the officer observed petitioner to have, among other things, a strong odor of alcoholic beverage on his breath, a flushed complexion, and poor coordination and balance. Petitioner thereafter failed five standard field sobriety tests, and the officer arrested him for driving while intoxicated. Contrary to petitioner's further contention, the determination is supported by substantial evidence in the record, i.e., the report of refusal (see Matter of Gray v. Adduci, 73 N.Y.2d 741, 743, 536 N.Y.S.2d 40, 532 N.E.2d 1268 ). Petitioner's reliance on People v. Cruz, 48 N.Y.2d 419, 427, 423 N.Y.S.2d 625, 399 N.E.2d 513, appeal dismissed 446 U.S. 901, 100 S.Ct. 1825, 64 L.Ed.2d 254 is misplaced inasmuch as that case involved a criminal conviction for driving while intoxicated.
We reject petitioner's further contention that the Department of Motor Vehicles Appeals Board improperly relied upon an adverse inference from petitioner's failure to testify at the hearing. Such an inference was permissible (see 15 NYCRR 127.5 [b]; see generally Matter of Northland Transp. v. Jackson, 271 A.D.2d 846, 848, 706 N.Y.S.2d 501 ). We have considered petitioner's remaining contention and conclude that it is without merit.
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.