We dissent and vote to confirm. Concededly, petitioner was the operator of the automobile involved in an accident and was subsequently arrested at a nearby bar where he had been drinking after the accident. The record, in our view, contains ample evidence to sustain a conclusion that the officer had reasonable grounds to believe petitioner was driving while intoxicated. It is significant that petitioner’s license was revoked, not for driving while intoxicated, but for refusing to submit to a chemical test as mandated by section 1194 of the Vehicle and Traffic Law. No issue is raised that the test was not requested within the time specified in the statute. Under these circumstances, it is putting the cart before the horse to permit petitioner to refuse, with impunity, the test on the ground that he had a few drinks after the accident and before the request. It also frustrates the intent of the statute. To carry out the purpose of- section 1194, petitioner was obligated initially to submit to the test and thereafter to offer any proof available to negate the result of such chemical test.
The determination should be confirmed.
Cooke and Kane, JJ., concur with' Staley, Jr., J.; Herlihy, P. J., and Sweeney, J., dissent and vote to confirm in an opinion by Sweeney, J.
Determination annulled, and petition granted, with costs.