People v. Fox

Untermyer, J,

The defendant has been convicted of the violation of subdivision 5 of section 70 of the Vehicle and Traffic Law, in that at about eleven-thirty on the evening of December 28,1938, he operated an automobile while intoxicated.

The immediate occasion for the arrest was the fact that the defendant was operating the automobile without lights. The arresting officer, however, detected the odor of liquor on the defendant’s breath and then charged him with driving while intoxicated. The defendant refused to submit to the intoxication test commonly applied, contending that there was no…