Zero Tolerance Law

In 1995 New York State enacted the so-called “Zero Tolerance Law.” The Zero Tolerance Law provides for administrative penalties at the New York State Department of Motor Vehicles (NYS DMV) for drivers under the age of twenty-one (21 years) even though they may not meet the requirements for criminal penalties under the New York State DWI related statutes.

Accordingly, if a driver under the age of twenty-one years is found to have a blood alcohol content (BAC) between .02% and .07%, they will be required to appear for a hearing at the NYS DMV.

If it’s proven at the NYS DMV hearing that the driver was:

1. Under twenty-one years of age; and
2. Operating a motor vehicle; and
3. That a chemical test showed a blood alcohol content (BAC) of between .02% and .07%.

Then the Zero Tolerance Law will result in a suspension of that driver’s license for six months and a penalty of $125.

This charge will remain on a driver’s license for the longer period of three years or until the driver turns twenty-one years of age.

If the driver has a prior alcohol related offense on his record, the driver’s license will be revoked for one year (not suspended) or until that person turns twenty-one years of age pursuant to the Zero Tolerance Law.

A driver under twenty-one (21 years) with a BAC of between .05% and .08% will charged with the non-criminal violation of driving while ability impaired (DWAI).

No administrative hearing will be held at the DMV in that instance.

A person cannot be prosecuted under the “Zero Tolerance Law” if he is already charged with any DWI related statute in criminal court.

The reverse is also true. A person cannot be charged with DWI in any criminal court if an administrative proceeding is already brought at the New York State DMV for a Zero Tolerance violation.

However, because the Zero Tolerance Law is a lesser included offensive DWI, a person can be convicted of a Zero Tolerance Law violation if he is first charged with DWI under any 1192 vehicle and traffic law section.

Unlike a DWI related disposition the Zero Tolerance Law specifically allows for the sealing of records against the defendant following the final disposition of proceedings.

The Zero Tolerance Law is inapplicable to a driver of a commercial vehicle. So even if a person under twenty-one operates a commercial vehicle with a BAC content of below .06% that person may still be prosecuted for operating a commercial vehicle while impaired.

Where a person under twenty-one years is convicted under the Zero Tolerance Law his driver’s license will be suspended and his registration may also be suspended, for a period of six months.

Under the Zero Tolerance Law a driver’s license or privilege to drive in New York State may not be suspended pending a hearing (as would be the case with a person charged with a DWI related offense).

A minor suspected of violating the Zero Tolerance Law (but not DWI) can be temporarily detained, however, he may not be arrested based upon his status as a minor.

Every minor who is suspected of violating the Zero Tolerance Law is entitled to a hearing at DMV. The Zero Tolerance Law hearing will determine whether the minor has violated the Zero Tolerance Law and, accordingly, whether she will keep her driver’s license or privileges.

If a defendant fails to appear at the Zero Tolerance Law Hearing, his driver’s license will be suspended.

Unlike a DMV refusal hearing, if the police officer fails to appear at the Zero Tolerance Hearing, the DMV hearing officer may dismiss the charges against the driver.

If you have been charged with a violation of the Zero Tolerance Law, please contact Stewart A. McMillan immediately at (914) 358-4326 or on his 24 hour cell phone at (917) 538-5016 or e-mail him at stewart@mcmlawyer.com.