Zero Tolerance

New York has a special statute governing drivers who are under 21 years old. This statute is known as the "Zero Tolerance law." This law makes it unlawful for a driver who is under 21 to drive with a blood alcohol concentration (BAC) of at least .02% but not more than .07%. A violation of the "Zero Tolerance law" is not criminal. Instead, the violation is returnable to the Department of Motor Vehicles. A driver who is charged with a zero tolerance violation but who is not arrested for DWI is entitled to a hearing at DMV. The driver has the choice to ask for a hearing or to waive it. The penalty for a first zero tolerance offense is a mandatory six month license suspension and a discretionary six month registration suspension. In addition, there is a $125 civil penalty. A first offender will typically be eligible for a conditional license. The penalty for a second offense is a mandatory license revocation and discretionary registration revocation for at least one year or until the driver reaches the age of 21, whichever is longer. A second offender will not be eligible for a conditional license.

It is worth repeating that a zero tolerance violation is not a crime. In fact, the statute states that it is not an "offense." As a result, a zero tolerance violation cannot be charged in criminal court. In addition, a zero tolerance violation cannot be used by a prosecutor's office to bump up a misdemeanor DWI charge to a felony. In the event that a driver who is under 21 years old is arrested for DWI and is tested at .08% or higher, he/she will be charged with DWI and there will not be an extra zero tolerance violation.

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