In the Matter of Patrick N. McCaul, petitioner,
New York State Department of Motor Vehicles, respondent.
MacGiollabhui, New York, NY, for petitioner.
Letitia James, Attorney General, New York, NY (Anisha S.
Dasgupta and Philip J. Levitz of counsel), for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, ROBERT J.
MILLER, COLLEEN D. DUFFY, JJ.
DECISION & ORDER
pursuant to CPLR article 78 to review a determination of the
New York State Department of Motor Vehicles Administrative
Appeals Board dated January 4, 2018, affirming a
determination of an administrative law judge dated June 15,
2017, which, after a hearing, found that the petitioner
refused to submit to a chemical test in violation of Vehicle
and Traffic Law § 1194 and revoked his driver license.
that the determination dated January 4, 2018, is confirmed,
the petition is denied, and the proceeding is dismissed on
the merits, with costs.
petitioner was arrested after he was found slumped behind the
wheel of his car, which was stopped at a gas station between
the gas pumps and the parking spaces, with its engine running
and its lights on. The police lieutenant who first
encountered the petitioner knocked on the car window several
times in an attempt to awaken the petitioner. When the
petitioner did not respond, the lieutenant opened the
unlocked driver's side door and shook the petitioner. The
lieutenant, who detected the strong odor of an alcoholic
beverage and observed the petitioner to be intoxicated,
requested assistance. Upon responding to the scene, the
arresting police officer, inter alia, detected the strong
odor of an alcoholic beverage and observed that the
petitioner had bloodshot eyes, slurred speech, and was
unsteady on his feet. The petitioner performed poorly on
field sobriety tests and would not cooperate with a
preliminary breath test. At the police station, the
petitioner spoke to an attorney by telephone in the presence
of the arresting officer before refusing a chemical test.
hearing pursuant to Vehicle and Traffic Law § 1194(2)(c)
was held on June 15, 2017, before an administrative law judge
(hereinafter the ALJ). Following the hearing, the ALJ
determined that the petitioner refused to submit to a
chemical test and imposed a mandatory license revocation. The
determination was affirmed by the New York State Department
of Motor Vehicles Administrative Appeals Board (hereinafter
the Appeals Board). The petitioner commenced this proceeding
pursuant to CPLR article 78 to review the Appeals Board's
determination. The proceeding was transferred to this Court
pursuant to CPLR 7804(g) by order of the Supreme Court, dated
August 1, 2018.
evidence supports the determination revoking the
petitioner's driver license for refusing to submit to a
chemical test in violation of Vehicle and Traffic Law §
1194 (see Matter of Schoonmaker v New York State Dept. of
Motor Vehs., 33 N.Y.3d 926, 928; Matter of Vasquez v
Egan, 174 A.D.3d 811).
evidence adduced at the hearing, including the arresting
officer's written report of the petitioner's refusal
to submit to a chemical test, a narrative report of the
arresting officer, a supplemental narrative report of the
police lieutenant who first encountered the petitioner, and
the petitioner's testimony, demonstrated that the police
had reasonable grounds to believe that the petitioner had
been driving a motor vehicle while under the influence of
alcohol in violation of Vehicle and Traffic Law § 1192
and that the police had probable cause to arrest the
petitioner (see Vehicle and Traffic Law §
1194[c]; Matter of Schoonmaker v New York State Dept.
of Motor Vehs., 33 N.Y.3d at 928; Matter of Vasquez
v Egan, 174 A.D.3d 811). Contrary to the
petitioner's contention, substantial evidence supports a
finding that the lieutenant who first encountered the
petitioner, whether acting in the performance of his public
service function or in the performance of his role as an
agent of law enforcement, was justified in approaching the
petitioner's vehicle, upon observing the petitioner
slumped over in the driver's seat of the vehicle, and in
opening the unlocked driver's side door, when the
petitioner did not respond to several attempts to awaken him
by knocking on the window (see People v De Bour, 40
N.Y.2d 210, 215; People v Spencer, 289 A.D.2d 877,
879; People v Engle, 74 A.D.2d 583, 583-584;
People v Cosimano, 40 Misc.3d 132');">40 Misc.3d 132 [A], 2013 NY Slip
Op 51141[U] [App Term, 2d Dept, 9th & 10th Jud Dists]).
evidence adduced at the hearing also demonstrated that, after
the petitioner's arrest, the petitioner was given
sufficient warning of the consequences of refusing to submit
to a chemical test, and that the petitioner refused the
officer's request to submit to such a test (see
Vehicle and Traffic Law § 1194[c]; Matter of
Vasquez v Egan, 174 A.D.3d 811). The petitioner's
contention that he was deprived of his limited right to
counsel because the arresting officer did not allow him to
have a private conversation with his attorney is without
merit (see Matter of Finocchairo v Kelly, 11 N.Y.2d
58, 60; Matt ...