zero-tolerance-dwi

NY’s Zero Tolerance Law – When People Under Age 21 Drink & Drive

January 5, 2021

In 2016, 10,497 people died in alcohol-impaired driving crashes. And young people are considered to be at a higher risk of involvement in such fatal crashes. As such, New York takes a “zero tolerance” approach to underage drinking and driving. Specifically, the Zero Tolerance Law is aimed at drivers under the age of 21 who drink and drive, even if they aren’t facing other traffic or criminal charges.

 

DWI, DWAI, and Zero Tolerance

New York’s laws on impaired and intoxicated driving are listed in Article 31 of the Vehicle and Traffic Law. Namely, many of the charges are based on the driver’s blood alcohol concentration (“BAC”) as measured by a chemical test (breath, blood, or urine).

BAC Reading Offense Offense Level
0.06% or 0.07% Driving While Ability Impaired by Alcohol Violation
0.08% to 0.17% Driving While Intoxicated Per Se Misdemeanor or felony, depending on driving history
0.18% or higher Aggravated Driving While Intoxicated Misdemeanor or felony, depending on driving history
No reading, but observations are made by the officer Driving While Intoxicated Misdemeanor or felony, depending on driving history

Additionally, there are other offenses for driving while impaired/intoxicated, including:

  • While under the influence of drugs
  • When under the influence of a combination of alcohol and drugs
  • While under the influence and a child aged 15 or younger is in the car

However, if the driver is under age 21 and has a BAC of 0.02% or above, he/she may also be in violation of the Zero Tolerance Law. Surprisingly, this is even when the driver’s BAC is 0.05% or less and no other traffic tickets or criminal charges are given. This will result in a traffic ticket for “Driving After Having Consumed Alcohol.” Why? The purpose of the Zero Tolerance Law is to discourage those under 21 years of age from drinking and driving.

 

DMV Hearings for Zero Tolerance Violations

Violations of the Zero Tolerance Law are handled by the DMV’s Division of Safety and Business Hearings. At the hearing, an administrative law judge will determine:

  • Was there was a lawful vehicle stop
  • If the driver was indeed operating the vehicle
  • Whether the driver was under 21 years of age at the time
  • If the officer properly requested a chemical test
  • Was the chemical test was properly administered
  • Whether the driver’s BAC was 0.02% or more at the time he/she was driving

Notably, the standard of proof in DMV hearings is a mere “preponderance of the evidence.” Under this standard, the police officer just needs to prove the elements are more likely than not true. This is far less than the “beyond a reasonable doubt” standard used in criminal courts.

 

Penalties Under the Zero Tolerance Law

If there is a finding that the driver violated the Zero Tolerance Law, the DMV will assess civil penalties. And the driver’s license is also subject to suspension and/or revocation. The penalties for underage drinking and driving are listed in the chart below.

Violation Type Fine Driver’s License Action
First violation $125 civil penalty, plus $100 suspension termination fee Six month suspension
Second violation $125 civil penalty, plus $100 re-application fee One year revocation, or until age 21
First violation with chemical test refusal $300 civil penalty, plus $100 re-application fee One year revocation (or longer)
Second violation with chemical test refusal $750 civil penalty, plus $100 re-application fee One year revocation (or longer)

Notably, a driver may be eligible to get a conditional license to drive to work, school, or medical appointments during any suspension/revocation period. Additionally, the violation remains on the driver’s record for three years, or until they turn 21, whichever is longer.

 

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