Fermin-Perea v. Swarts

Sweeny and DeGrasse, JJ.,

dissent in a memorandum by DeGrasse, J., as follows: In my view, respondents’ determination was supported by substantial evidence and I respectfully dissent. The instant determination was made after a chemical test refusal hearing that was held pursuant to Vehicle and Traffic Law § 1194 (2) (c). The issue before us is whether substantial evidence supported the administrative law judge’s (ALJ’s) determination that the police officer who arrested petitioner had reasonable grounds to believe that he was driving while intoxicated. The majority finds substantial evidence to be lacking on the basis of a video depicting petitioner’s performance on three coordination tests that were administered at a precinct 25 minutes after his arrest. The real question, however, is whether reasonable cause existed when petitioner was stopped by the police officer, not 25 minutes later. For reasons that follow, Í disagree with the majority’s apparent conclusion that the video is dispositive under a substantial evidence analysis.

An administrative determination “is regarded as being supported by substantial evidence when the proof is so substantial that from it an inference of the existence of the fact found may be drawn reasonably” (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 179-180 [1978] [internal quotation marks and citations omitted]). The standard “is less than a preponderance of the evidence” and demands only that “a given *443inference is reasonable and plausible, not necessarily the most probable” (Matter of Miller v DeBuono, 90 NY2d 783, 793 [1997] [internal quotation marks omitted]). Measured against this standard, the evidence before the ALJ was sufficient to support respondent’s determination.

The ALJ credited the police officer’s report in which it was stated that petitioner was speeding, followed other vehicles too closely and changed lanes without signaling several times. The report also noted and the ALJ found that petitioner “displayed strong smell of alcohol on breath, bloodshot/watery eyes, slurred speech, swaying and unsteady gait.” Although the video showed that petitioner was steady on his feet and did not slur his speech when he took the coordination tests, it did not refute the evidence of petitioner’s erratic driving, the smell of alcohol on his breath and his bloodshot and watery eyes. Under a substantial evidence analysis, these factors alone can suffice as reasonable grounds to believe that a motorist was driving while intoxicated (see e.g. Matter of Whelan v Adduci, 133 AD2d 273 [1987], lv denied 70 NY2d 616 [1988]; cf. People v Donaldson, 36 AD2d 37 [1971]). I would therefore confirm respondents’ determination.