By: Adam H. Rosenblum Esq. | Last Updated:
Being pulled over by the police is always unnerving. This is especially true for drivers under the age of 21 who are accused of driving while intoxicated (DWI). Underage drivers accused of committing a DWI offense face high stakes that can affect their futures dramatically. Navigating New York’s complicated DWI laws is no small task, but with the help of an experienced DWI defense attorney, underage drivers can achieve a range of favorable outcomes from these most unfortunate circumstances.
What DWI Offenses Can an Underage Driver be Charged With in New York?
There are three general categories of DWI-related offenses that an underage driver might be charged with when a police officer suspects them of driving while intoxicated:
- Zero Tolerance Law
- Chemical Test Refusal
- DWAI or DWI
In this article, we focus primarily on the zero tolerance law, the only one of the three that is aimed specifically at underage drivers. We also briefly summarize the other two categories of offenses, highlighting aspects most relevant to underage drivers.
What Is New York’s Zero Tolerance Law?
New York’s zero tolerance law is legislation aimed at curbing drunk driving among underage drivers. It defines an offense, separate from New York’s comprehensive DWI laws, that are applicable only to drivers under the legal drinking age of 21 years who drive while intoxicated by alcohol. It’s called the “zero tolerance” law because it sets the strict standard that drivers under the age of 21 years cannot drive with a blood-alcohol level of .02%, which is just above 0%. The intention is to show that, for underage drivers, driving with virtually any amount of alcohol in their systems is unacceptable.
The zero tolerance law balances leniency for young people with the need to discourage drunk driving by making a zero tolerance offense non-criminal. It is instead resolved entirely through an administrative proceeding at New York’s Department of Motor Vehicles (hereinafter “DMV”). Nevertheless, this offense exposes underage drivers to significant undesirable consequences. The offense is defined by the following:
- V&T Code: § 1192-A
- Offense Title: Operating a Motor Vehicle After Having Consumed Alcohol; Under the Age of Twenty-One; per se
- Designation: No judgment of conviction for a crime or any other offense
- No person under the age of 21 shall operate a motor vehicle after having consumed alcohol, defined as having a blood-alcohol content (BAC) of .02% or more but not more than .07%, as shown by chemical analysis of such person’s blood, breath, urine, or saliva.
- Fine: $125
- License suspension: 6 months
- Registration may be suspended: 6 months
- License revocation (only if prior offense as defined in section): 1 year or until the holder reaches the age of 21, whichever is the greater period of time
License suspension vs. revocation:
- A suspended license is taken away for the specified suspension period and reinstated at the conclusion of this period. In other words, the license is temporarily invalid but becomes valid again once the period is over.
- A revoked license is cancelled. The only way to rectify license revocation is to apply for a new one at the conclusion of the revocation period.
What Happens After an Underage Driver Is Accused of a Zero Tolerance Offense?
Step #1: Traffic Stop
An underage drunk driving case always begins with a traffic stop. The police officer must have reasonable grounds to lawfully pull a driver over. If the officer suspects the driver has been drinking, they will ordinarily conduct a series of field sobriety tests, which includes things like walking in a straight line. The officer will also likely administer a portable breathalyzer test to get a preliminary read on the driver’s blood-alcohol content. If by this point the officer believes the driver was driving while intoxicated, they will want to administer a chemical test.
Step #2: Detention and Chemical Test
For the zero tolerance offense, an officer is technically not allowed to arrest an underage driver. However, the law does permit an officer to detain an underage driver for the sole purpose of chemical testing. Therefore, once the officer believes it more likely than not that the driver is intoxicated within the meaning of the law, they will detain the driver and request that they submit to a chemical BAC test. Provided that
- the driver submits to taking the chemical test,
- the test reveals a blood-alcohol content within the range of .02% – .07%, and
- the officer elects to charge the driver with the zero tolerance offense.
The officer will write a detailed report, which is forwarded to New York’s Department of Motor Vehicles.
Step #3: Receive Notice of Hearing
Next, a hearing will be scheduled, and the driver will receive a notice of this hearing. The hearing will be an administrative hearing at New York’s DMV. The law says it is to be scheduled to take place between 48 hours and 30 days after the traffic stop. The driver has a right to a hearing but also has the option of waiving the hearing and pleading guilty to the charged offense. The driver’s license will not be suspended or revoked before the hearing or, if the driver chooses to waive the hearing and plead guilty to the offense, before the DMV is notified of their guilty plea.
Step #4: Hearing
If the driver doesn’t waive it, the final step is the hearing. The driver is able to testify on their own behalf at the hearing, have an attorney present their case for them, or refuse to present a case altogether. At the hearing, the police officer must prove with clear and convincing evidence of all of the following:
- The accused person operated the motor vehicle.
- A valid request to submit to a chemical test was made by the police officer.
- The accused person was under the age of 21 years when they operated the motor vehicle.
- The chemical test was properly administered.
- The test found the person had “consumed alcohol” within the meaning of the offense.
- The police officer made a lawful stop of the accused person.
If the police officer is able to prove each of these elements affirmatively, the driver is fined and their license is revoked or suspended. If the police officer fails to prove even one of these elements, the driver must be found not guilty of the charged offense.
How Do You Beat a Zero Tolerance Charge?
Ordinarily, a drunk driving charge is “beat” in one of two ways:
- Undermining the State’s case, or
- Pleading guilty to a lesser offense for less harsh penalties in what is known as a “plea bargain”
New York’s zero tolerance offense is the mildest of the drunk driving offenses, so negotiating a plea bargain is not usually on the table; there simply isn’t anything to negotiate down to. This leaves the first option: undermining the State’s case. The main way to beat a zero tolerance charge is to undermine the police officer’s evidence at the administrative hearing.
The list of elements a police officer must prove with clear and convincing evidence provide a blueprint for defending against a zero tolerance charge. The idea is that since the law requires the police officer to prove all of them to the “hearing officer” (the person that presides over the administrative hearing), mounting a successful defense should involve undermining the officer’s evidence to convince the hearing officer that one of the elements has not been proven. Such defenses usually center around one of three arguments:
- The police officer made a procedural mistake
- The police officer stopped the driver unlawfully
- The chemical test results were faulty
The Police Officer Made a Procedural Mistake
The law sets out very specific procedures police officers must follow when they suspect someone of driving while intoxicated. When an officer fails to follow proper procedure, this can form a basis for a successful defense. This is reflected in the elements the officer must prove at the administrative hearing stage. For example, one of the elements is that a valid request to submit to a chemical test was made by the police officer.
NY Veh & Traf L § 1194(2)(a)(1) provides that a chemical test must be given within two hours after the traffic stop when the driver is underage. If the officer failed to abide by this rule, a successful defense might consist of cross-examining the officer at the administrative hearing and prompting them to admit to this procedural mistake. Another avenue is presenting evidence demonstrating such a mistake was made. This evidence can be as simple as the officer’s report not providing all the information the law requires of it.
The Police Officer Stopped the Driver Unlawfully
A successful defense could also focus on the element requiring the police officer to have made a lawful stop of the accused person. In People v. Robinson, a New York appeals court held a traffic stop is lawful “where a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation.”
“Probable cause” is a legal concept that basically means having good reason, based on the available evidence, to believe that the law has been broken, is being broken, or is about to be broken. Put another way, a traffic stop is lawful when an officer has reasonable suspicion that the driver or occupants of a vehicle have committed or are about to commit a crime.
This defense can be tricky, but it is possible to successfully assert that the police officer did not have probable cause to stop a driver to begin with. A good example is the case People v. Del Rio. Mr. Del Rio was arrested for a DWI when he failed the field sobriety tests and chemical test after a police officer pulled him over in Middletown, New York. At trial, Del Rio’s attorney argued that the traffic stop was unlawful to begin with, so the State should not be permitted to present evidence of the field sobriety tests nor the chemical test, both obtained after the faulty traffic stop and therefore tainted. This would basically destroy the State’s case.
The police officer had testified that he stopped Del Rio because he observed Del Rio’s vehicle briefly swerve over the solid white line in the road. The State pointed out that the officer believed at the time of the stop that swerving like this was a violation of the Vehicle and Traffic Code, so the traffic stop was justified. The court didn’t buy this argument, reasoning that a police officer is responsible for knowing the laws in their jurisdiction and swerving in this way is simply not a violation of the Vehicle and Traffic Code. The court concluded the officer did not have probable cause to pull Del Rio over, and the traffic stop was therefore unlawful.
The Chemical Test Results Were Faulty
Another common argument is that the chemical test results were faulty. The officer is required to prove that the chemical test was properly administered. This includes legal guidelines, such as the previously mentioned requirement that the chemical test is given within two hours of the traffic stop. A late chemical test is not only procedurally defective but can actually be inaccurate as a result of the delay. A person’s blood-alcohol content can rise with time, so it can be argued that the results of a late blood test reflect a higher blood-alcohol content than what the driver actually had when they were stopped.
Another argument is that the chemical sample was improperly stored if the chemical test administered was a blood test, for example. Again, these arguments are not always very straightforward, but skilled DWI defense attorneys have a knack for scrutinizing the evidence and pinpointing inconsistencies.
Chemical Test Refusal
A second type of DWI-related offense an underaged driver can be charged with is a civil offense for refusing to take a chemical test as part of a DWI investigation.
What is Chemical Test Refusal?
When a police officer has reasonable grounds for believing an underage driver has driven while under the influence of alcohol or drugs, part of their investigation will involve asking the driver to submit to a chemical test. A chemical test involves taking a sample of the driver’s blood, breath, urine, or saliva to measure the driver’s blood-alcohol content. Chemical test refusal is refusing to submit to this test or a part of this test when it is requested under these circumstances.
Chemical test refusal is a civil offense punishable by fines and license revocation:
- V&T Code: § 1194(2)
- Offense Title: *Not officially titled but commonly referred to as “chemical test refusal”
- Designation: Civil offense
- Refusing to submit to a chemical test or any portion thereof when the police officer
- had reasonable grounds to believe the driver operated a motor vehicle after having consumed alcohol
- requested that the driver submit to a chemical test
- informed the driver that their license or permit to drive and any non-resident operating privilege shall be revoked for refusal to submit to such chemical test or any portion thereof, whether or not there is a finding of driving after having consumed alcohol
- Fine: $500
- BUT if prior offense (defined in section) in past 5 years, fine is $750
- License revocation:
- IF first offense, minimum of 1 year
- IF prior offense, 1 year or until the holder reaches the age of 21, whichever is the greater period of time
Chemical test refusal is punishable because of the concept of implied consent. New York’s state law provides that drivers, by electing to drive in the State, impliedly consent to a chemical test in the event that they are pulled over and suspected of driving while intoxicated. This consent is a condition of being permitted to drive in New York, so revoking this consent carries consequences including loss of the privilege of driving in New York for a period of time. Though it is not technically defined as its own category of offense, there are separate penalties and procedures involved when a chemical test is refused.
How Does Refusing a Chemical Test Affect a DWI Charge?
In People v. Robles, the court noted “the Vehicle and Traffic Law permits evidence of defendant’s refusal [of a chemical test] to be admitted at trial on the theory that such a refusal evinces (demonstrates) the defendant’s consciousness of guilt.” In other words, the State can present evidence of a chemical test refusal in a way that suggests the driver refused because they knew their blood-alcohol content would be above the legal limit.
Offenses Applicable to All Ages: DWAI or DWI
Two final types of offenses underage drivers can be charged with are a DWAI, a traffic infraction, and a traditional DWI, usually a misdemeanor. Underage drivers are not exempt from being charged with the ordinary DWI charges that adult drivers are subject to. New York’s comprehensive system of DWI laws identifies seven types of DWI offenses. With exposure to the criminal justice system and the possibility of hefty fines and jail time, New York’s DWI offenses are punished far more harshly than zero tolerance law violations. Briefly, New York’s seven DWI offenses are:
§ 1192(1) – Driving While Ability Impaired by Alcohol
Operating a motor vehicle while one’s ability to operate such a motor vehicle is impaired by alcohol. This offence is characterized as applying where one’s blood alcohol content (“BAC”) is more than .05% but less than .07%.
§ 1192(2) – Driving While Intoxicated, per se
Operating a motor vehicle with a BAC of .08% or greater.
§ 1192(2-a)(a) – Aggravated DWI, per se
Operating a motor vehicle with a BAC of .18% or greater.
§ 1192(2-a)(b) – Aggravated DWI, with a Child
Operating a motor vehicle while intoxicated by alcohol or drugs while a passenger of such vehicle is a child fifteen years or younger. Intoxication by alcohol or drugs here includes driving while ability impaired by drugs, driving while ability impaired by combination of drugs or drugs and alcohol, driving while intoxicated, per se, and driving while intoxicated (common law DWI).
§ 1192(3) – Driving While Intoxicated (Common Law DWI)
Operating a motor vehicle while in an intoxicated condition. It is also known as a “common law DWI.” It customarily involves one who refused a chemical BAC test, thus forcing the State to prove intoxication by other means, such as the field sobriety test results and the officer’s impressions of the driver’s state. It has been interpreted by courts to apply only where one is intoxicated by alcohol.
§ 1192(4) – Driving While Ability Impaired by Drugs
Operating a motor vehicle while one’s ability to operate such a motor vehicle is impaired by drugs. “Drugs” include all of the controlled substances listed in NY Pub Health L § 3306 (2019).
§ 1192(4-a) – Driving While Ability Impaired by Combined Influence of Drugs and Alcohol
Operating a motor vehicle while one’s ability to operate such a motor vehicle is impaired by influence of multiple drugs or the influence of both drugs and alcohol.
Zero Tolerance Offense vs. DWAI/DWI: What Determines Which Offense Is Charged?
Whether an underage driver accused of driving while intoxicated is charged with a zero tolerance offense or a DWI offense depends on two main factors:
- The circumstances of the alleged offense
- The police officer’s discretion
Circumstances of the Alleged Offense
One important consideration is what charge best fits the alleged misconduct. A major difference between New York’s zero tolerance law and its other DWI offenses is that the zero tolerance law only covers intoxication by alcohol, while the DWI offenses cover a wide range of circumstances relating to driving while intoxicated. Further, the BAC range covered by the zero tolerance law overlaps with some DWI charges and is exceeded by others. These facts can be significant when a police officer is deciding how to charge an underage driver.
- A BAC between .02% and .05% is a zero tolerance offense
- A BAC between .05% and .07% could be either a zero tolerance offense or a DWAI offense
- A BAC above .07% is likely at least a DWI per se offense
For example, suppose a 20 year old driver, under the legal drinking age of 21, is pulled over for running a red light. The police officer approaches the vehicle and notices the driver’s eyes are bloodshot, and their speech is slurred. While the officer administers a field sobriety test, they notice there is a lighter sticking out of the driver’s pocket. In the front seat of the vehicle, there is a canister containing marijuana, and the car smells like marijuana. The driver’s BAC test returns a result of .06%. What offense will be charged?
Well, this will partly come down to the officer’s judgment and discretion. A better question for now is what offenses might be chargeable. The zero tolerance law is certainly a good candidate. The driver is under the age of 21, and they have been found driving with a BAC of .06%, which falls within the range of the zero tolerance law (.02% – .07%). However, this could also fall within New York’s DWAI offense, defined as driving with a BAC between .05% and .07%. Another possibility is the DWAI-combined influence offense, which is defined as driving while one’s ability is impaired by the combined influence of drugs and alcohol–here, possibly alcohol and marijuana.
The point is that the circumstances dictate the range of options a police officer can choose from. The police officer’s discretion will usually then determine which offense is actually charged.
Police Officer’s Discretion
While the precise circumstances of the alleged misconduct determine what options are available to the police officer, it is ultimately within the officer’s discretion to decide which of the options is most appropriate. The ways police officers exercise this judgment can’t necessarily be described with certainty. Different officers might have different approaches and styles. Nevertheless, there are some things officers generally factor into their decision-making.
One consideration is the available evidence. Generally speaking, the availability of good evidence determines what crimes police officers will and won’t charge. It doesn’t make sense to charge an offense if there ultimately won’t be enough evidence to convict the accused person. This is slightly less forceful in the DWI context because distinctions between the various offenses depend so heavily on the objective measure of a driver’s BAC. Yet, this applies in circumstances such as when a driver is suspected of being impaired by both drugs and alcohol. A chemical test might indicate a high BAC, but there might not be enough evidence of the drug component to support a charge of “driving while ability impaired by combined influence of drugs and alcohol.”
Accused Offender’s Age
Another criteria is the age of the accused offender. New York’s zero tolerance law is presumably designed to balance punishing drunk driving with shielding underage drivers from overly harsh consequences. This at least appears to be why the law doesn’t allow underage drivers to be arrested for a zero tolerance offense and why the offense doesn’t carry any criminal charges. Considering this interest in protecting underage drivers, an officer might be inclined to be more lenient in deciding which offense to charge.
This consideration is probably balanced, however, against the interests of safety, which is more explicitly accounted for in the law’s purpose. At the zero tolerance law’s inception in 1996, the governor of New York at the time remarked in a memo that “this bill will send a clear message to our young drivers that drinking and driving is simply intolerable.” The State evidently places a high premium on ensuring underage drivers are punished swiftly for drunk driving.
Nevertheless, an officer might be inclined to exercise discretion in a way that accounts for the particular circumstances at play. For example, an officer might sympathize more with an underage drunk driver caught driving on a quiet road than with an underage drunk driver pulled over after swerving from lane to lane on a busy highway. This can also apply to the driver’s general disposition. A cooperative, polite driver might invite more leniency than a belligerent, rude one.
Underage drivers accused of a DWAI or DWI offense can benefit from plea bargaining. A plea bargain is when the State’s evidence against a driver is so strong that it makes more sense for the driver to plead guilty to a less severe offense in exchange for less serious penalties than it is for the driver to risk more severe penalties at trial. As with most drivers charged with a DWI offense in New York, underage drivers have the option of having an attorney negotiate and accept a plea bargain on their behalf. For example, a driver charged with a DWI, per se, might plead guilty to a lesser DWAI charge, which has the benefit of less severe penalties, including the fact that a DWAI is categorized as a traffic infraction rather than as a misdemeanor.
In the plea bargaining process, underage drivers have at least one distinct advantage over others charged with a DWI: the availability of the zero tolerance offense. An underage driver’s attorney can negotiate a DWI charge down to a zero tolerance offense. This is a fantastic option because it carries comparatively minimal penalties and doesn’t result in a criminal record. While this sort of plea bargain is not guaranteed, it is a great option to have on the table.
NY Veh & Traf L § 1192(10)(c) confirms that the court can approve a plea deal where the accused driver agrees to plead guilty to the zero tolerance offense when charged with a DWI offense. It goes on to explain that part of the agreement should involve the driver waiving their right to an administrative hearing for the zero tolerance charge. Accepting this sort of plea deal therefore amounts to accepting the penalties for a zero tolerance violation without a hearing to defend against the charge.
How Does an Underage Driver’s Age Affect Sentencing for a DWI Charge?
When underage drivers are charged with and convicted of an adult DWI charge, they are legally subject to the same penalties as everyone else. In some ways, they are subject to harsher penalties, such as with license revocation. In other respects, their youth might lead a judge to offer more leniency.
Underage drivers convicted of a DWI or DWAI are subject to harsher license revocation terms than drivers of legal drinking age. The minimum revocation term for underage drivers is one year, compared to six months for drivers of legal drinking age. For underage drivers with a prior DWI-related conviction, the revocation period becomes one year or until the driver turns 21, whichever takes longer. Also, unlike drivers of legal drinking age, underage drivers are not able to have their license suspensions or revocations forgiven by completing the Impaired Drivers Program. This is a weeks-long DMV program that seeks to prevent impaired driving by educating drivers about the risks and consequences of impaired driving.
For all seven of New York’s DWI offenses, the law sets the outer limits for the penalties but provides judges with significant discretion to choose appropriate penalties within those limits. For example, a per se DWI, defined as driving with a BAC of .08% or greater, is punishable by a fine between $500 and $1,000, a maximum jail sentence of one year, or both a fine and jail time.
This is sometimes to the advantage of underage drivers convicted of a DWI offense. Given the law’s interest in shielding the youth and protecting their futures, it is conceivable that a judge would observe a measure of leniency for underage DWI offenders. They might, for example, dispense with jail time altogether and order a fine on the lower end. They might also be more willing to entertain sentencing alternatives, such as community service. This interest might be balanced against other circumstances of the offense, such as the level of intoxication, what led the officer to discover the driver’s intoxication, and aggravating factors, like whether the drunk driver caused harm to another.
Do I Need an Attorney?
When dealing with any drunk driving-related charge, underage drivers should get the services of an experienced DWI defense attorney to ensure the best possible outcome.
First, the stakes of any drunk driving-related charge are especially high for underage drivers. A DWI offense can leave an underage driver with a criminal record that can affect their future in significant ways, such as denying access to certain jobs and education scholarships. Even a zero tolerance offense, the mildest of them all, can result in losing one’s license for a significant period of time. Attorneys can help with things like:
- Defending against the charge, whether in criminal court or the administrative hearing process
- Advocating for a less harsh sentence in the case of a conviction
- Negotiating a plea bargain
- Getting the judge to grant a conditional license, which allows drivers with a suspended or revoked license to drive to and from certain places during the suspension/revocation period
A second consideration is that even the most competent non-lawyer would struggle with legal proceedings absent legal training. New York’s criminal process is complicated and even administrative hearings can be difficult to navigate. What’s more, getting the process wrong can have negative and often irreversible consequences. An experienced attorney will know the procedures well and have the expertise to guide their client to the best possible outcome.
How Common Are Underage DWIs?
While arrest data and precise statistics for underage DWIs are lacking, available data suggests underage drunk driving is all too common and remains a danger throughout the nation. Responsibility.org reports that though under-21 alcohol-impaired driving fatalities have decreased steadily in recent years, in 2018, 980 underage drivers nationwide died due to drunk driving. Over a quarter of these fatalities (26.9%) occurred in New York.
Frequently Asked Questions
New York has numerous laws relating to underage drinking. The two main offenses besides an underage DWI are underage possession of alcohol and underage attempt to purchase alcohol by fraudulent means, mostly meaning a fake ID. New York’s underage possession of alcohol law states that people under the age of 21 can only possess alcohol with the intent to consume it under certain circumstances. Otherwise, they can be fined up to $50 and made to attend an alcohol awareness program, but will not be arrested nor charged with a crime for this violation alone. New York’s fake ID law makes it illegal to attempt to purchase alcohol with a fake ID or by other fraudulent means. The punishment can include a fine, community service, and mandatory attendance at an alcohol awareness program. The extent of these punishments worsen for repeat offenders.
For the most part, being accused of drunk driving while under the age of 18 follows much of what happens for underage drivers broadly. One slight difference is that an attorney can ask the court to allow an accused driver between the ages of 14 and 18 to be treated as a youthful offender. The main benefit is that youthful offender status protects the accused person from a criminal record if they are convicted of the crime with which they are charged. In the drunk driving context, New York’s zero tolerance offense is not a criminal offense anyways, so youthful offender status is not needed. However, it becomes relevant when the driver is charged with a criminal DWI offense.
This will depend on the offense. A zero tolerance offense typically remains on one’s driving record for three years. A DWI offense remains on one’s driving record for ten years. However, a criminal DWI conviction remains on one’s criminal record forever.
Yes. There are numerous additional charges that can be brought when an underage driver, or any driver for that matter, is found driving while intoxicated. This can include minor, non-criminal charges, such as underage possession of alcohol, or more serious criminal charges, like felony vehicular manslaughter charges brought when someone’s drunk or drugged driving causes the death of another.
This will depend on what the driver is charged with. New York’s Office of General Counsel stated that insurance companies cannot raise premiums for zero tolerance law violations, citing a law that doesn’t allow rates to be raised for traffic infractions. However, since a zero tolerance offense carries a period of license suspension and/or revocation, the insurance company can cancel one’s insurance policy on these grounds. However, for ordinary DWI convictions, insurance companies can raise insurance rates and, once the driver’s license is suspended or revoked, can cancel the policy.
Who Should I Contact if I’ve Been Charged With an Underage DWI?
Confronting the criminal justice system is always daunting and uncertain, and this holds especially true for underage drivers facing a DWI charge. The law is complicated, and a DWI charge is serious. A mishandled case can have lasting consequences for the accused driver’s life. This is why if you or a loved one have been charged with an underage DWI, it is crucial to contact an experienced DWI defense attorney today. At Rosenblum Law, our dedicated attorneys leverage their expertise and passion to achieve the very best outcomes for accused underage drivers. E-mail or call 888-815-3649 for a free consultation.