| Matter of Craig v Swarts |
| 2009 NY Slip Op 09351 [68 AD3d 1407] |
| December 17, 2009 |
| Appellate Division, Third Department |
| In the Matter of Dean C. Craig, Petitioner, v David J. Swarts, asCommissioner of Motor Vehicles, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Julie S. Mereson of counsel), forrespondent.
Kavanagh, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Albany County) to review a determination of the Department ofMotor Vehicles which revoked petitioner's driver's license.
In April 2007, State Trooper Robert LeBarron responded to a report of an overturned vehiclein the Town of Hague, Warren County, and eventually located the unoccupied vehicle in a fieldadjacent to Friends Point Road North in the vicinity of State Route 9N. After a registration checkfailed to yield a valid address, LeBarron began canvassing the neighborhood and, at the secondoccupied residence, encountered petitioner's father, who indicated that petitioner had been in anaccident. In response to questioning by LeBarron, petitioner, who purportedly smelled of alcoholand exhibited slurred speech, impaired motor coordination and bloodshot eyes, allegedly stated,"I was going too fast, I was drunk, I rolled my car." After petitioner denied having consumed anyadditional alcohol after the accident, LeBarron administered five field sobriety tests, all of whichpetitioner failed. LeBarron then placed petitioner under arrest for driving while intoxicated andread petitioner his Miranda and driving while intoxicated warnings, the latter of whichadvised petitioner of the consequences of refusing [*2]to submitto a chemical test to determine the level of alcohol in his blood. Although petitioner verballyconsented to taking the chemical test, numerous attempts on two separate machines failed toyield a testable sample and petitioner was deemed to have refused the test by his conduct. As aresult, his license temporarily was suspended pending a revocation hearing before a Departmentof Motor Vehicles Administrative Law Judge (hereinafter ALJ).
Following a hearing in May 2007, at which LeBarron was the sole witness, the ALJ revokedpetitioner's license and imposed a civil penalty.[FN1]Upon review, the Administrative Appeals Board affirmed the ALJ's determination, concludingthat LeBarron had reasonable grounds to believe that petitioner operated his car upon "a publichighway, private road open to motor vehicle traffic, or any other parking lot" in violation ofVehicle and Traffic Law § 1192. The Department of Motor Vehicles thereafter revokedpetitioner's license for one year effective April 3, 2008, prompting petitioner to commence thisCPLR article 78 proceeding, subsequently transferred to this Court, to challenge thatdetermination.[FN2]
Vehicle and Traffic Law § 1194 (2) (a) (1) authorizes the administration of a chemicaltest when a police officer has "reasonable grounds" to believe that an individual has operated amotor vehicle while under the influence of alcohol and/or drugs in violation of any subdivisionof Vehicle and Traffic Law § 1192. The crux of petitioner's argument on review is that hislicense should not have been revoked following his chemical test refusal because LeBarron didnot have reasonable grounds to believe, under "the totality of the circumstances surrounding theincident" (Vehicle and Traffic Law § 1194 [2] [a] [3]), that petitioner operated a motorvehicle on a road to which Vehicle and Traffic Law § 1192 applies. Specifically, petitionercontends that there is no proof that he drove his vehicle on Friends Point Road North, nor isthere any evidence to support a finding that such road constitutes a "public highway[ ], privateroad[ ] open to motor vehicle traffic [or] . . . parking lot" (Vehicle and Traffic Law§ 1192 [7]). We cannot agree.
In view of petitioner's admissions to LeBarron and the discovery of petitioner's vehicle in afield adjacent to Friends Point Road North, it was entirely reasonable for LeBarron to infer,under the totality of the circumstances presented, that petitioner was driving on that road at thetime of the accident. As to the legal status of Friends Point Road North, while there was no directtestimony on this point, LeBarron stated that this road is located in the vicinity of State Route 9Nand that there were numerous residences in the area where petitioner's accident occurred.Additionally, a letter from the local highway superintendent indicating that "[t]he roads inFriends Point Association . . . are private roads, including but not limited to FriendsPoint Drive, Friends Point Drive North and South," and an accompanying photograph, give riseto the inference that the road in question is open to motor vehicle traffic and, hence, falls withinthe purview of Vehicle and Traffic Law § 1192 (7) (cf. Matter of Malphrus v State ofNew York Dept. of Motor Vehs., 191 AD2d 775, 776 [1993]). We therefore conclude thatthe determination revoking petitioner's license upon his refusal to take a chemical test issupported by substantial evidence (see Matter of Giampia v New York State Dept. of MotorVehs., 256 AD2d 578 [1998]).[*3]
Spain, J.P., Rose, Malone Jr. and McCarthy, JJ., concur.Adjudged that the determination is confirmed, without costs, and petition dismissed.
Footnote 1: Revocation of petitioner'slicense was stayed pending an administrative appeal.
Footnote 2: Respondent agreed to stay therevocation order pending resolution of this proceeding.