DUI & DWI

New York State's Zero Tolerance Law: DWI Violations and Consequences

By Teo Spengler, J.D.

September 25, 2020

Reviewed by Michelle Seidel, B.Sc., LL.B./JD, MBA

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Can You Refuse a Breathalyzer or Chemical Test in New York State?

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Quite a few states have special zero tolerance laws that apply to minors who drink and drive. New York is one of them. Since it is illegal for a person to drink in New York before the age of 21, the laws make it a civil offense for anyone under the age of 21 to drive with any alcohol in their system. Understanding New York's Zero Tolerance Law requires an overview of the state's regular DWI laws.

If a driver under 21 is given a chemical test to determine BAC, and it shows a blood alcohol concentration of between 0.02 percent and 0.07 percent, they can be charged under the Zero Tolerance Law without further proof of impairment being needed.

New York's Drunk Driving Laws

The Zero Tolerance Law makes it illegal for anyone under the age of 21 years to drive with alcohol in their system. Under Vehicle & Traffic Code section 1192(a), this can be established by proof of a blood alcohol concentration (BAC) of over 0.02 percent.

Anyone wishing to understand the Zero Tolerance Law in New York and its potential penalties must grasp the larger framework of DWI law. New York's laws about driving under the influence are both strict and complex. They are found in the state's Vehicle & Traffic Code. Section 1192 of the code makes it illegal for anyone to drive under the influence of alcohol or drugs.

A driver can be charged either for driving while impaired by alcohol (DWAI) or for driving while intoxicated (DWI). Proving impairment or intoxication requires the testimony of the police officers and others who witnessed the manner in which the person drove and/or performed on the field sobriety tests and chemical tests.

Chemical Testing and DWI "per se"

However, the code also makes it illegal for a person to drive with 0.08 percent or greater BAC. The BAC is determined by administering a chemical test to the driver, such as a breath, urine, blood or saliva test. This type of DWI is called a "per se" offense since all that a prosecutor needs to convict is proof that the person was driving with a BAC at or over the legal limit of 0.08 percent. No proof of actual impairment or intoxication is required.

Zero Tolerance Law for Young People

Under New York's Zero Tolerance Law, it is illegal for anyone under the age of 21 to drive with alcohol in their system. If the driver under 21 is given a chemical test to determine BAC, and it shows a blood alcohol concentration of between 0.02 percent and 0.07 percent, they can be charged under the Zero Tolerance Law without further proof of impairment being needed.

However, the law also provides that finding that a person under the age of 21 violated this provision is not a judgment or conviction for a crime or any other offense. So what does this mean? It means that the underage drinking driver will suffer administrative penalties, not criminal penalties.

The Zero Tolerance Process in the State of New York

If a driver under the age of 21 is pulled over by the police and alcohol use is suspected, the driver will be asked to take a breath test. Generally, the driver is detained and taken to the police station for this test. If the test shows a blood alcohol concentration that is at least 0.02 percent but not greater than 0.07 percent, the driver is not charged criminally. Rather, they are given a notice to appear at an administrative hearing at the Department of Motor Vehicles (DMV).

The DMV hearing is held before an administrative law judge. The police must establish that the driver was under 21 at the time of the stop, that they administered a chemical test which showed that the driver's BAC was 0.02 percent or more at the time they were driving. The driver can, but need not, testify. They may retain a defense attorney to represent them and they may call witnesses. Then the judge decides whether the driver violated the Zero Tolerance Law.

Penalties for a first offense of violation of the Zero Tolerance Law include a driver's license suspension for six months and a civil fine of $125. For a second offense, the DMV suspends the person's driving privileges for a year or until they are 21 years of age, and imposes a fine.

Refusing the Breathalyzer Test

Refusing the breathalyzer test in New York is a separate offense termed refusal. Every person driving in the state is deemed by law to have consented to take a chemical test if stopped by the police for a DWI-type offense. For those under 21 who refuse to take the chemical test, the administrative hearing will also adjudge that to be refusal.

The penalty for a first-time refusal is a license revocation or suspension of at least one year. The driver may also be fined and will certainly need to pay a fee to get their license reinstated at the end of the suspension period. The offense will stay on the driver’s record for three years or until they are 21 years old.

Driver With Higher BAC

If a driver under the age of 21 has a BAC that is higher than 0.07 percent, they may suffer criminal charges. With a BAC between 0.07 and 0.08 percent, the young driver is arrested by the police and charged with driving while ability is impaired by alcohol (DWAI). The criminal penalties for a first-time DWAI can include up to 15 days of jail time, a 90-day license suspension and fines of up to $500.

It's even more severe if the driver has a BAC of 0.08 percent or more. This means that they are driving while intoxicated under the per se provisions of the Vehicle & Traffic Code. That is a DWI offense and, as a first-time DWI, can result in up to a year in jail, a six-month license revocation and fines of up to $1,000.

Note that New York State law allows individuals who are at least 16 years old, but younger than 19, and are charged criminally to apply for a youthful offender adjudication. For first-time offenders, the court is required to grant this, vacate the conviction and replace it with a youthful offender finding. That carries a maximum jail sentence of six months.

Possible Conditional License Eligibility

When a young driver is found to have violated the Zero Tolerance Law for the first time, their license is suspended. However, if they do not have any prior alcohol-related convictions, the driver is eligible to apply for a conditional license. This allows the person to drive to and from work and/or school.

As a prerequisite to the conditional license application process, the driver must enroll in a DMV-approved driver's education course and show evidence that they completed the course when applying for the conditional license.

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