Per Curiam. Although two prior hearings, at one of which petitioner’s witnesses were present, had been adjourned for the convenience of the police officer, the Referee denied petitioner’s request for an adjournment to enable him to produce witnesses as to his sobriety.
The statute required that the officer have “reasonable grounds to believe [petitioner] to have been driving in an intoxicated condition” (Vehicle and Traffic Law, § 1194, subd. 1); and petitioner desired to produce witnesses to prove that he had drunk but' a very small amount of beer, but the Referee considered that “Whether [the officer] had reasonable grounds or not would not depend on what Mr. Beatty had been doing * * * before he left his residence [but] on what the police officer observed”.
The Referee thus overlooked the possibility that-the witnesses might have convinced her as to petitioner’s sobriety in which event it would have become very difficult for her to continue to give credence to the officer’s testimony as to petitioner’s gait and speech, as she apparently did when denying the adjournment; and, of course, if the officer was not truthful as to his observation of petitioner, the element of “reasonable grounds” was not proven. The Referee’s action, under all the circumstances, was arbitrary. We do not, of course, reach the merits.
Determination annulled, with $75 costs, and matter remitted for further proceedings. Gibson, P. J., Herlihy, Reynolds, Aulisi and Hamm, JJ., concur.