In order to sustain the revocation of petitioner’s license, it must be established that the arrest was lawful (Vehicle and Traffic Law, § 1194, subd 3, par a; Kowanes v State of New York Dept. of Motor Vehicles, 54 AD2d 611, 612). In my view, the arrest was unlawful and, therefore, respondents’ determination must be set aside.
Warrantless felony arrests in the home are prohibited by the Fourth Amendment absent probable cause and exigent circum*198stances (Payton v New York, 445 US 573). This rule has recently been extended to nonfelonies (Welsh v Wisconsin, 466 US _, 104 S Ct 2091) In Welsh v Wisconsin (supra), the Supreme Court held that, since the State of Wisconsin classifies a first offense for driving while intoxicated as a noncriminal, civil forfeiture offense for which no imprisonment is possible, a warrantless home arrest could not be justified regardless of exigent circumstances (supra, p —, p 2100). Since New York has classified a first offense for driving while intoxicated as a misdemeanor punishable by imprisonment as well as a fine, the direct holding of Welsh is inapplicable and I agree with the majority that a warrantless home arrest would be allowable where probable cause and exigent circumstances exist. However, upon my review of the record, exigent circumstances were not established.
In determining whether exigent circumstances exist, it must be kept in mind that warrantless home arrests are presumptively unreasonable and the police bear a heavy burden in attempting to demonstrate an urgent need that might justify a warrantless arrest (Welsh v Wisconsin, supra, p _, pp 2097-2098). Whether exigent circumstances exist depends upon the facts and circumstances of the particular situation. The majority here finds exigent circumstances based upon the uninterrupted pursuit of petitioner and the need to make a timely test of his blood alcohol level. Since these concerns are present in virtually all cases of suspected driving while intoxicated, the majority is, for all practical purposes, setting forth a blanket rule that, where police have probable cause to arrest an individual for driving while intoxicated, exigent circumstances automatically exist justifying a warrantless arrest in the individual’s home. Such a blanket rule does not do justice to the underlying rationale of Supreme Court decisions in Payton v New York (supra) and Welsh v Wisconsin (supra). Rather, the finding of exigent circumstances must be based on the facts of each case.
The majority notes that, to ensure an accurate measurement, the chemical test for intoxication must be administered within two hours after the driver has been arrested (Vehicle and Traffic Law, § 1194, subd 1, par [1]). However, there is absolutely no evidence in the record that an arrest warrant could not have been obtained promptly so that petitioner could have been tested within the proper time period. Relevant to this issue is section 1194-a of the Vehicle and Traffic Law dealing with compulsory chemical tests for intoxication in certain situations where a driver refuses to submit to a test. Such compulsory chemical tests are upon court order and provision is made for expediting the process to ensure that the test will be reliable. Similarly, it *199cannot be said that simply because a chemical test must be conducted within two hours of arrest, it is automatically impossible in all cases to obtain an arrest warrant in time to ensure a reliable test. Additionally, since there were two police officers involved in the case, presumably one could have remained to ensure that petitioner did not leave his residence* while the other obtained a warrant. Thus, this is not a case where a delay in obtaining a warrant could result in the escape of the suspect.
In conclusion, I agree that exigent circumstances justifying a warrantless home arrest for driving while intoxicated may exist in an appropriate case. However, the finding of exigent circumstances must be based on specific factual assertions and not on a de facto blanket rule that exigent circumstances are always present following a vehicular chase such that a warrantless arrest is justified in contravention of the Fourth Amendment.
In the instant case, the record is devoid of specific evidence of exigent circumstances warranting departure from the general rule that the determination of probable cause to arrest an individual in his home be made by a neutral and detached magistrate.
Casey, Levine and Harvey, JJ., concur with Weiss, J.; Mahoney, P. J., dissents and votes to reverse in an opinion.
Determination confirmed, and petition dismissed, without costs.
Since probable cause that petitioner had been driving while intoxicated existed, he could have been arrested without a warrant if he left his residence (see United States v Watson, 423 US 411).