Legislation Affects Drivers Under 21 Years of Age

New York State's "Zero Tolerance" Law became effective on November 1, 1996. The Zero Tolerance law applies to a person under age 21 who operates a motor vehicle with a blood alcohol concentration (BAC) of .02% or more but not more than .07%. Even though the law is called "zero tolerance," the minimum BAC is .02 and not 0. This is because certain cough syrups and mouthwashes contain alcohol, and since some families will permit the consumption of small amounts of alcohol as part of religious or family functions. The Legislature decided to set the standard at .02% in order to address only those young people who had willfully consumed alcohol and operated a motor vehicle.

If you are stopped...

If you are stopped by a police officer for having consumed alcohol and the officer deems that you are younger than 21 and appear to have consumed alcohol, you will be temporarily detained for the purpose of taking a breathalyzer test to determine your blood alcohol level (BAC), usually at the police station. If you refuse to take a breath test, you will be subject to a license revocation of at least one year.

Blood Alcohol Content (BAC) and How You May Be Charged

BAC Offense Procedures
.02% or more but not more than .07% Driving after having consumed alcohol (a zero tolerance violation) Administrative Hearing
more than .05% and less than .10% Driving while ability is impaired by alcohol (DWAI) Criminal Court
.10% or more Driving while intoxicated (DWI) Criminal Court

If your BAC is .02% or more, but not more than .07%, you will be charged with the traffic offense of "driving after having consumed alcohol." You will then be provided with a notice to appear for a hearing before an administrative law judge of the Department of Motor Vehicles.If your BAC is more than .05% but not more than .07%, the police will have the option of charging you with "driving while ability is impaired by alcohol" (DWAI).If your BAC is more than .07% but less than .08% you will be charged with the offense of "driving while ability is impaired by alcohol" (DWAI), and for those with a BAC of .08% or more, the charge will be "driving while intoxicated" (DWI). If you are charged with either DWI or DWAI, you will be arrested and dealt with in criminal court.

If you are charged...

  • The DMV Administrative Hearing
      If you are charged with having operated a motor vehicle after having consumed alcohol and are scheduled for a DMV administrative hearing:
      The police officer must prove that:
    • You were the person who operated the motor vehicle
    • A valid request was made to submit to a chemical test (e.g., breathalyzer)
    • You were younger than 21 at the time
    • The chemical test was properly administered
    • The test showed you had consumed alcohol (.02% or more)
    • and The police officer made a lawful stop of the vehicle

You will be entitled to provide evidence in your defense, including any witnesses. You may have an attorney represent you at the hearing, however since this is not a criminal hearing, there is no provision for a public defender and you would be responsible for all of the attorney's fees. If, after both sides have been heard, the police officer has carried his burden of proving the case, the administrative law judge will make a finding that you drove after having consumed alcohol. Failure to attend for the hearing will result in a temporary suspension -- but you may reschedule your hearing. An official waiver will waive your right to a hearing and will result in a suspension or revocation, as appropriate. Hearing Results While being charged with driving after consuming alcohol is considered a serious violation of the law, it is not designated as a crime and you cannot go to jail for violating this law. However, at the very least you will have your license suspended for six months and pay a civil penalty of $125. You must pay an additional $100 fee when your license is returned. If you are charged with having driven after having consumed alcohol, the charge will remain on your record for three years or until you are 21, whichever is longer.If you have any prior alcohol-related traffic offenses on your record, your license will be revoked for one year or until you reach the age of 21, whichever is longer.

If you lose your license...

  • License Revocation
  • You will need to turn in your license to DMV, and it will be illegal for you to drive. At the end of the revocation period, you may apply for a permit and start the licensing procedure. This does not mean that you will have a new driving record. Any convictions you had with the license which was revoked will still be part of your driving record.
  • License Suspension
  • You will need to turn in your license to DMV, and it will be illegal for you to drive. Your license will be returned to you at the end of the suspension period. If your license is suspended under the zero tolerance law, and you do not have any prior alcohol-related convictions on your license, you may be eligible for a conditional license. However, in order to receive one, you must enroll in and complete the an approved Driver Program. Both the program and the conditional license carry additional costs to you over and above those costs mentioned previously. A conditional license will allow you to drive back and forth to work and school, but it is not the same as a full license.

Field Sobriety Tests:
If a person is driving a car and is stopped by a police officer and the officer suspects intoxication there are several tests that may be administered. There are several of these tests which are standard across the entire country.

These three tests are the standardized versions:

  • Horizontal gaze nystagmus test
  • The one-leg stand
  • Walk and turn
Below are some of the additional tests which may be adiministered:
  • Finger to nose
  • Count backwards
  • Stand with feet together and tip the head backwards
  • Recite the alphabet or a portion of it
  • Count backwards


Criminal law is the body of law that relates to so-called "public wrongs." Criminal law does not concern itself with disputes between individuals but also to offenses against the public order. The federal government, along with cities and states, define and prosecute people who commit crimes that range from minor traffic violations to serious, violent offenses, like rape or murder. People who are charged with a crime are called defendants, and they are represented by criminal defense attorneys. The governmental body that pursues the charges against the defendant is represented by a lawyer called a prosecutor. If you find yourself charged with a crime, you should contact an experienced criminal defense attorney, to protect your rights now and in the future.

The United States Constitution prohibits taking a person's life, liberty, or property without the due process of law. In order to meet this standard, a criminal statute must clearly set out the conduct that will be considered criminal. The statute must be more than a vague description that leaves a person without notice of exactly what conduct is prohibited. A criminal statute must set out the state of mind of a guilty person, called the mens rea, as well as the unlawful action, or actus reus. If you accidentally step on someone's toes when you enter a crowded elevator, that is not a crime because there was no guilty mind. Fantasizing about stomping on your boss's toes is not a crime because there is no guilty act. Crimes of attempt, like attempted murder, are not an exception to this rule. Attempt crimes require doing something toward the commission of the crime. A criminal defense attorney will be able to explain these terms to you and to take away some of the mystery of an unfamiliar situation.

The Defense Process

Every lawyer involved in the criminal justice system must adhere to a complex set of rules of procedure to ensure a fair trial. The rules apply to both prosecutors and defense attorneys. This complicated procedure means that the criminal justice system is best dealt with by an experienced criminal defense attorney. A defense attorney should get involved in a case at the earliest stages, even before interrogation, if possible. The arresting officers have the obligation to inform the person in custody that he or she has the right to an attorney and the right to have an attorney appointed if he or she does not have the resources to pay for an attorney. Most of us are familiar with these warnings - called "Miranda" warnings, after the name of the US Supreme Court case that first required the warnings -- from crime dramas and television shows. Crimes committed by children are handled by a separate criminal justice system, known as the juvenile justice system. Juvenile courts typically have less formal procedures and a less formal manner of adjudicating cases. While many defense lawyers handle both juvenile and adult cases, some focus their practices on only one type of representation.

Negotiating a Plea Agreement

Some criminal charges are dropped after a defendant's defense attorney negotiates with the prosecutor. In some cases, the defendant pleads guilty to a less serious charge in exchange for the prosecutor's agreement to drop the more serious charges. The final decision on whether to accept a proposed plea agreement always rests with the defendant. Depending upon the severity of the crime committed, a defendant who is found guilty may be sentenced to serve some period of probation, to pay a fine, perform community service, make restitution or pay for the monetary losses caused by the crime, or to serve some time in prison. In some states, the most severe crimes are punishable by death. A veteran criminal defense attorney will know how to work with a prosecutor to fashion a deal that provides for the least severe punishment possible. If no deal can be made, the attorney can mount an aggressive defense in court to convince the jury that the prosecutor cannot prove, beyond a reasonable doubt, that the defendant committed the crime.


When you are accused of a crime, you find yourself in a frightening and stressful situation. No matter how minor the charge may seem, you should be represented by knowledgeable, competent counsel, who can work through the criminal justice system, give you zealous representation, and minimize the impact of the proceedings on your life. If you have been accused of a crime, or if you know someone who has been accused of a crime, do not delay in contacting an experienced criminal defense attorney.

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