In Matter of Fermin-Perea v. Swarts, a New York Appellate Division, First Department panel held that it was error to revoke a driver’s license on the basis of a refusal to submit to a chemical test, where a field sobriety test conducted 25 minutes after the stop indicated, contrary to the information contained in the arresting officer’s refusal report, that there was no impairment or intoxication.
Under the New York Vehicle and Traffic Law, a driver’s “refusal to submit to a chemical test could only result in revocation of his driver’s license if a chemical test was authorized by law in the first instance”, i.e., “when reasonable grounds exist to believe that a person was operating a motor vehicle under the influence of alcohol or drugs, meaning while impaired or intoxicated”.
Here, the arresting officer’s refusal report “indicates that upon stopping petitioner because he was speeding, following too closely, and changing lanes without signaling, the officer observed that petitioner was unsteady on his feet, had bloodshot eyes, slurred speech and a strong odor of alcoholic beverage on [his] breath.” However:
[T]he field sobriety test, administered approximately 25 minutes later, a video of which was admitted in evidence at the hearing, establishes that petitioner was not impaired or intoxicated. Specifically, the video demonstrates that over the course of four minutes, petitioner was subjected to standardized field sobriety testing and at all times clearly communicated with the arresting officer, never slurred his speech, never demonstrated an inability to comprehend what he was being asked, and followed all of the officer’s commands. Petitioner successfully completed the three tests he was asked to perform; thus never exhibiting any signs of impairment or intoxication.
While “the contents of the arresting officer’s refusal report, standing alone, establish reasonable grounds for the arrest under the Vehicle and Traffic Law … where, as here, a field sobriety test conducted less than 30 minutes after the officer’s initial observations, convincingly establishes that petitioner was not impaired or intoxicated, respondent’s determination that there existed reasonable grounds to believe that petitioner was intoxicated has no rational basis and is not inferable from the record.” The court also reiterated that “[a] field sobriety test is ‘accepted within the scientific community as a reliable indicator of intoxication'”.
In sum, since the “field sobriety test, conducted shortly after petitioner was operating his motor vehicle … failed to establish that petitioner was intoxicated or otherwise impaired”, the license-revocation determination was not supported by substantial evidence.