IN RE: KYLE P. MCDONELL (2010)

MEMORANDUM AND ORDER

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Monroe County [Ann Marie Taddeo, J.], dated April 15, 2010) to review a determination of respondent Commissioner, New York State Department of Motor Vehicles.   The determination suspended petitioner's license for refusal to submit to a chemical test.

It is hereby ORDERED that the determination is unanimously annulled on the law without costs and the petition is granted.

A refusal revocation hearing was held pursuant to Vehicle and Traffic Law § 1194(2)(c), following which the Administrative Law Judge (ALJ) concluded that the Trooper had lawfully arrested petitioner and that petitioner had refused to submit to a chemical test for the purpose of determining his blood alcohol content.   Respondent subsequently confirmed that determination on petitioner's administrative appeal.

We agree with petitioner that he did not violate Vehicle and Traffic Law § 1162, inasmuch as it is undisputed that petitioner's vehicle had not been stopped, standing or parked before the Trooper stopped the vehicle.  “A [trooper] is authorized to stop a motor vehicle on a public highway when the [trooper] observes or reasonably suspects a violation of the Vehicle and Traffic Law ․ Where[, as here, a trooper's] belief is based on an erroneous interpretation of law, the stop is illegal at the outset and any further actions by the [trooper] as a direct result of the stop are illegal” (Matter of Byer v. Jackson, 241 A.D.2d 943, 944-945).   Because the Trooper who stopped petitioner's vehicle testified at the hearing before the ALJ that his only basis for the traffic stop was the alleged violation of Vehicle and Traffic Law § 1162, we conclude that the determination must be annulled.

Patricia L. Morgan

Clerk of the Court