
    James R. Clark, Respondent, v Robert Abrams, as Attorney-General of the State of New York, Respondent, and Patricia B. Adduci, as Commissioner of Motor Vehicles of the State of New York, Appellant.
   Judgment unanimously reversed on the law without costs, and petition dismissed. Memorandum: The court was without authority to grant the petition, annul the determination of respondent Commissioner, and order her to enroll petitioner in the Drinking Driver Program. A person is prohibited from participating in the program if, during the five years immediately preceding his commission of an alcohol-related traffic offense, he participated in the alcohol rehabilitation program (Vehicle and Traffic Law § 1196 [4]). The record establishes that petitioner was in the program from November 16, 1983 to May 7, 1984 and that on October 27, 1988 petitioner was convicted of driving while intoxicated on August 31, 1988. Thus, since petitioner had participated in the program within five years immediately preceding his second alcohol-related offense, he was prohibited from participating in the program. Neither the Commissioner nor the court may disregard the statutory eligibility requirement. (Appeal from judgment of Supreme Court, Monroe County, Patlow, J.—art 78.) Present—Denman, J. P., Boomer, Pine, Balio and Lawton, JJ.  