SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
September 27, 1968
IN THE MATTER OF THOMAS J. SWEENEY, PETITIONER,
VINCENT L. TOFANY, AS COMMISSIONER OF MOTOR VEHICLES OF THE STATE OF NEW YORK, RESPONDENT
Review of determination revoking petitioner's driver's license, transferred by order of Onondaga Special Term.
Williams, J. P., Goldman, Marsh, Witmer and Henry, JJ.
Memorandum: Petitioner was involved in an automobile accident on April 19, 1967 at about 1:10 a.m. At 1:15 a.m. he was arrested by a police officer who asked him if he wished to submit to an alcohol test, and told him that it was not mandatory for him to do so. Petitioner said that he would like to speak to an attorney and did not wish to take the test. The accident occurred within one half mile of the office of Justice of the Peace Hall, to whom the officer then took petitioner, arriving there at 2:10 a.m. for arraignment. During the arraignment Justice Hall advised petitioner that if he refused to take the test, suspension of his license was mandatory. Petitioner thereupon agreed to take the test. At Justice Hall's request the officer called the police barracks to have the test given; but the officer there refused to arrange for the test on the ground that petitioner had already refused to take such test. We find that petitioner did not make an understanding refusal to take the test. The request made of him by the officer misled petitioner to believe that the test was optional, and that no penalty would result from refusal to take it. As soon as he learned that this was not the case, he agreed to submit to the test. It is apparent that he acted in good faith; and his unqualified offer was made within one hour after the accident and less than an hour after his arrest so that no prejudice resulted. His original refusal to take the test was not made to gain time; and more than an hour remained in which a proper test could have been given within the statutory time (Vehicle and Traffic Law, § 1192, subd. 3). This case is, therefore, clearly distinguishable from Matter of Lundin v. Hults (29 A.D.2d 581); Matter of Neet v. Hults (26 A.D.2d 970); Matter of McKenna v. Hults (25 A.D.2d 951) and Matter of Pettengill v. Hults (21 A.D.2d 853).
Determination unanimously annulled, without costs.
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