On November 1, 1996, New York State enacted a “Zero Tolerance” Law, which established strict blood alcohol concentration levels and firm penalties associated with infractions. Unlike what defendants encounter from criminal court proceedings, the standard of proof at a Department of Motor Vehicles’ hearing following a violation of the Zero Tolerance Law is much lower. Police officers only need to establish the allegation against you using the burden of proof described as “clear and convincing evidence” for you to be found guilty by the Administrative Law Judge.

New York Zero Tolerance Policy DWIWhat Is Zero Tolerance?

The Zero Tolerance Law stipulates that a person under age 21 who is pulled over while operating a motor vehicle and has a blood alcohol concentration (BAC) between .02% and 07% may be charged. An allowance is made for a BAC of .02 to account for the alcohol found in certain cough medications and mouthwashes. The rationale behind the law is that Zero Tolerance will dissuade young drivers from consuming any amounts of alcohol before operating a motor vehicle.

Although a ticket is issued for violating this law, it does not constitute a legal arrest and will not reflect on your record as such. In addition, your driver’s license will not be revoked prior to the administrative hearing. A notice will be mailed from the Department of Motor Vehicles scheduling the hearing.

What Happens When You Are Pulled Over?

If you are under the age of 21 and have consumed alcohol and are subsequently stopped by a police officer, you can expect to be temporarily detained while a breathalyzer test is administered. If you refuse a breathalyzer test, the DMV may revoke your license for at least one year.

Following the breathalyzer test, one of three offenses may be charged:

  • BAC of between .02% and .07%. A traffic offense may be issued for the violation of the Zero Tolerance criteria. A notice to appear will be mailed and you will appear before an administrative law judge employed by the DMV.
  • BAC between .05% and .08%. The officer will have the discretion of charging you with a DWAI (driving while ability is impaired by alcohol). This is an offense that is tried within the criminal court and will result in an arrest.
  • BAC above .08%. The officer will charge you with DWI (driving while intoxicated). This charge also constitutes an arrest and will be tried in criminal court.

What Happens If You Are Charged?

Once you receive a notice with a hearing date from the DMV, you should prepare for the hearing. Since the hearing is not criminal in nature, a public defender is not provided, but it is recommended that an attorney be present to assist with your defense. You will have an opportunity to provide evidence, including witnesses. The police officer will present the necessary evidence to support his burden of proof and the administrative law judge will deliver a ruling.

For the judge to find evidence against you, the police officer must prove that:

  1. The initial traffic stop was lawful.
  2. You were the person who was operating the motor vehicle and were younger than 21.
  3. The breathalyzer was properly administered and indicated a BAC of .02% or more.

If A Hearing Is Missed

If you fail to attend the hearing, your license will be temporarily suspended until the hearing is rescheduled. You have the option to waive the hearing, which will result in an automatic suspension or revocation, as deemed appropriate by the judge.

New York’s Zero Tolerance Law is a serious matter and, if handled improperly, could result in issues with your driver’s license that extend for years. The laws may appear to be complicated and confusing, which is why it is always best to contact a qualified and experienced professional if you are pulled over and charged.