IN RE: Jeffrey CLARK (2008)

 Petitioner commenced this proceeding pursuant to CPLR article 78 seeking to annul the determination revoking his driver's license based on his refusal to submit to a chemical test following his arrest for driving while intoxicated (DWI).   We confirm the determination.   Contrary to the contention of petitioner, having been lawfully arrested for DWI, he was not entitled to condition his consent to submit to a chemical test on first consulting with his attorney (see Matter of Brady v. Tofany, 36 A.D.2d 987, 320 N.Y.S.2d 880, affd. 29 N.Y.2d 680, 325 N.Y.S.2d 415, 274 N.E.2d 748;  Matter of Cook v. Adducci, 205 A.D.2d 903, 904, 613 N.Y.S.2d 475, lv. denied 84 N.Y.2d 811, 622 N.Y.S.2d 913, 647 N.E.2d 119).  “While indeed, in a criminal proceeding, the failure to comply with a defendant's request for assistance of counsel may result in the suppression of evidence obtained ․, the same consequence does not apply in the context of an administrative license revocation proceeding” (Cook, 205 A.D.2d at 904, 613 N.Y.S.2d 475).   Petitioner further contends that he did not receive an impartial hearing because the administrative law judge (ALJ) acted as an advocate for respondent by questioning the witnesses.   We reject that contention.   The ALJ's questioning concerned whether the officer had reasonable grounds to arrest petitioner for DWI, whether petitioner was given a sufficient warning that his refusal to submit to a chemical test would result in the immediate suspension and subsequent revocation of his license, and whether petitioner refused to submit to a chemical test (see Vehicle and Traffic Law § 1194[2][c] ).  There is no indication in the record that the ALJ was not impartial (see Matter of Eckler [Commissioner of Labor], 254 A.D.2d 672, 673, 679 N.Y.S.2d 202;  Matter of Boudreau [Commissioner of Labor], 253 A.D.2d 939, 677 N.Y.S.2d 407;  Matter of Carota Enters. v. Jackson, 241 A.D.2d 667, 669, 659 N.Y.S.2d 581).   We have examined petitioner's remaining contention and conclude that it is without merit.

It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.

MEMORANDUM: