In Matter of Fermin-Perea v. Swarts (2012 NY Slip Op 03514 [First Dept 5/3/12], by a 3-2 vote the Appellate Division, First Department granted an Article 78 petition nullifying the DMV’s revocation of a license after a refusal to submit to a chemical test, because the video of the defendant/Petitioner taken 25 minutes after his arrest did not display any indicia of impairment or intoxication. The majority explained
The arresting officer’s refusal report, admitted in evidence at the hearing, 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, the 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 thearresting 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. Certainly, the contents of the arresting officer’s refusal report, standing alone, establish reasonable grounds for the arrest under the Vehicle and Traffic Law (Matter of Nolan v Adduci, 166 AD2d 277, 278 [1990] [police officer’s testimony that operator of motor vehicle was exceeding the speed limit, driving erratically, and his breath smelled of alcohol constituted reasonable grounds to arrest him for driving under the influence of alcohol], appeal dismissed 77 NY2d 988 [1991]). However, 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 (Matter of American Tel. & Tel. Co. v State Tax Commn., 61 NY2d 393, 400 [1984] [“If the agency’s determination is not supported by substantial evidence or it constitutes a clearly erroneous interpretation of the law or the facts, it will be annulled”]). A field sobriety test is “accepted within the scientific community as a reliable indicator of intoxication” (People v Hammond, 35 AD3d 905, 907 [2006], lv denied 8 NY3d 946 [2007]). Here, the field sobriety test, conducted shortly after petitioner was operating his motor vehicle, which failed to establish that petitioner was intoxicated or otherwise impaired, leads us to conclude that respondent’s determination is not supported by substantial evidence. ,,,,, it is simply unreasonable and uninferable that petitioner was intoxicated or impaired while operating his motor vehicle and yet, 25 minutes later he successfully and without any difficulty passed a field sobriety test. Matter of Whelan v Adduci (133 AD2d 273 (1987], lv denied 70 NY2d 616 [1988]) is inapposite. Matter of Whelan simply stands for the proposition that a police officer’s observation of blood shot eyes and alcohol on an operator’s breath constitute reasonable grounds to believe that the operator is intoxicated or impaired (id. at 273); a proposition with which we agree and is aptly supported by the case law (see Matter of Nolan, 166 AD2d at 278). However, as is the case here, the court in Matter of Whelan was never confronted with evidence that shortly after the officer’s observations of intoxication or impairment, the operator successfully completed a field sobriety test.
