SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
July 7, 1969
IN THE MATTER OF ARNE LINDLAND, PETITIONER,
VINCENT L. TOFANY, AS COMMISSIONER OF MOTOR VEHICLES OF THE STATE OF NEW YORK, RESPONDENT
Proceeding pursuant to article 78 of the CPLR to annul respondent's determination, rendered December 6, 1968, revoking petitioner's chauffeur's license for alleged refusal to submit to a chemical test to determine the alcoholic content of his blood.
Brennan, Acting P. J., Hopkins, Benjamin, Munder and Martuscello, JJ., concur.
No questions of fact were considered. The determination was based on a finding that, while in a police car en route to his arraignment and "prior to such time that * * * [he] attempted to produce a specimen", petitioner refused to submit to a urine test by stating he did not have to urinate. In view of the circumstances under which the request was made, the finding of no prior attempt to produce a specimen was critical. In our opinion, however, it was not supported by substantial evidence and the revocation which followed must therefore be annulled.
Determination annulled, on the law, with costs, and license directed to be reinstated.
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