
    In the Hatter of Johnnie B. Hall, Petitioner, v New York City Transit Authority, Respondent.
   Proceeding pursuant to CPLR article 78 to review a determination of respondent New York City Transit Authority, dated January 25, 1980 which dismissed petitioner from his employment for violating certain of the Transit Authority’s rules and regulations. Petition granted, on the law, with costs, the determination of the respondent dated January 25, 1980 is annulled and the respondent is directed to reinstate the petitioner to his position as a road car inspector with back pay and such other emoluments to which he may be legally entitled since the effective date of his dismissal, less the amount of compensation he may have earned in any other employment or occupation and any unemployment insurance benefits he may have received during this period. Absent a showing that a less burdensome alternative, such as a breathalyzer test, was not available, no presumption of unfitness as a result of indulging in intoxicating beverages can be drawn from petitioner’s refusal to submit to a blood test because the drawing of blood is against his religious beliefs (see Schmerber v California, 384 US 757, 765, n 9; cf. People v Thomas, 46 NY2d 100; Braunfeld v Broum, 366 US 599). Matter of Krolick v Lowery (32 AD2d 371, affd 26 NY2d 723, remittitur amd 26 NY2d 843, cert den 397 US 1075) is not dispositive of this matter. The petitioner submitted to and satisfactorily performed the sobriety tests administered at St. Clare’s Hospital. The only direct testimony to support respondent’s finding was a statement by petitioner’s foreman that he could detect, from two to three feet away, the slight smell of alcohol on petitioner’s breath, which could be attributed to the medication he allegedly ingested. However, in all other respects petitioner appeared normal and did not possess any other signs of intoxication. A train dispatcher testified that petitioner “appeared okay.” We find that based on the entire record, there is a lack of substantial evidence to sustain respondent’s determination. Lazer, J. P., Rabin, Gulotta and Cohalan, JJ., concur.  