Proceeding under'
article 78 of the Civil Practice Act (now CPLR, art. 78) to annul the determination of the Commissioner of Motor Vehicles revoking petitioner’s motor vehicle operator’s license because of his refusal to submit to a chemical blood test (Vehicle and Traffic Law, § 1194). By order of the Supreme Court, Rockland County, made October 14, 1963 pursuant to statute (CPLR 7804, subd. [g]), the proceeding has been transferred to this court for disposition. Determination confirmed, without costs.
In our opinion the evidence is sufficient to sustain (1) the finding that the police officer who arrested petitioner had reasonable grounds to believe petitioner was driving while intoxicated, and (2) the finding that petitioner refused to submit to the chemical test prescribed by the statute (Vehicle and Traffic Law, § 1194). The record discloses that the petitioner insisted that his personal physician be permitted to conduct the test set forth in subdivisions 1 and 3 of
section 1194 of the Vehicle and Traffic Law and not merely the additional test permitted by subdivision 4 of said section. Such a condition cannot properly be imposed by a driver; and his refusal to submit to the test unless the police gave their acquiescence to that condition, is a refusal to submit to the test within the meaning of the statute. Kleinfeld, Acting P. J., Brennan, Hill, Babin and Hopkins, JJ., concur.