Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.
The record contains substantial evidence to support the Commissioner's determination that the petitioner refused to submit to a breathalyzer test within the meaning of Vehicle and Traffic Law § 1194. At the time of the petitioner's arrest for driving while intoxicated, a police officer sought to administer a breath test to him for intoxication, which he agreed to take. However, the administering officer testified at the hearing that the petitioner refused to blow into the tube of the testing machine, thereby preventing his breath from being tested. The officer's testimony also established that the machine was in working order. The petitioner did not testify at the hearing.
On this record, the Commissioner properly found that the petitioner's actions constituted a refusal to take the breathalyzer test (see, Matter of Beaver v Appeals Bd., 68 N.Y.2d 935, revg 117 A.D.2d 956 on dissenting opn, at 958; People v Adler, 145 A.D.2d 943; Matter of Van Sickle v Melton, 64 A.D.2d 846; Matter of Di Girolamo v Melton, 60 A.D.2d 960). Mangano, P.J., Balletta, Copertino and Joy, JJ., concur.