Spears v. Tofany

Judgment unanimously reversed, without costs, petition dismissed and determination, confirmed. Memorandum: From a review - of .the record it is clear that there was substantial evidence td support the respondent’s' determination revoking petitioner’s operator’s license. Giving full credence to the testimony of. the dentist, which the Referee was not bound to do, petitioner’s condition at the time of his arrest would have been' manifested by extreme drowsiness. The arresting officer’s testimony contradicts the existence of any such state and fully supports the Referee’s findings and the conclusion that petitioner made an understanding refusal to submit to the test. (Appeal from judgment of Erie Special Term granting petition in article 78 proceeding.) Present — Del Vecehio, J.-'P., Marsh, Witmer, Moule and Cardamone, JJ. ' ' .