New York has special drinking and driving laws that apply to “underage” drivers—motorists who are under the age of 21. First, these laws prohibit underage motorists from driving with even a small amount of alcohol in their bodies. And second, these laws enhance the penalties for underage drivers who are convicted of offenses related to driving under the influence of alcohol and/or drugs.
The term “per se DWI” is used to describe a DWI charge that’s based solely on the driver’s blood alcohol concentration (BAC). You can get a per se DWI just for driving with a BAC of .08% or more—it’s doesn’t matter whether or not your ability to drive safely was affected by your drinking.
New York has an underage per se law that applies the same concept to underage motorists that drive with a BAC of .02% or greater, but less than .08%. Police can cite these drivers for violating the underage per se statute even if they weren’t actually impaired by alcohol. (See N.Y. Veh. & Traf. Law § 1192-a.)
This doesn’t mean that underage motorists can’t be arrested for a regular DWI, or another offense related to driving under the influence such as DWAI (driving while ability impaired). (See below.)
Unlike a regular DWI—which is usually a misdemeanor—an underage per se DWI isn’t considered a crime in New York. Instead of having to go to criminal court, a driver who’s charged only with violating New York’s underage per se statute will be referred to the Department of Motor Vehicles (DMV) for a hearing. And it’ll be a DMV commissioner, as opposed to a judge or jury, who will decide whether the driver is guilty of the charge.
A motorist found guilty of violating New York’s underage per se law will face a six-month license and have to pay a $125 civil penalty. However, most of these motorists will be able to get a conditional license (generally, for driving to and from work and school) if they participate in the “Impaired Driver Program,” formerly called the “Drinking Driver Program.”
A violation of the underage per se law is considered a second offense if the motorist has a prior underage per se law violation or DWI/ DWAI conviction. A second offense carries a license suspension of one year or until the driver turns 21 years old—whichever is longer—and a $125 civil penalty. Drivers found guilty of a second offense won’t be eligible for the Impaired Driving Program or a conditional license.
Anyone, including an underage driver, can get a DWI for driving with a BAC of .08% or more or while impaired to a "substantial degree" by alcohol. Also, any motorist can be convicted a DWAI for driving while impaired to “any extent” by alcohol, drugs, or a combination of the two. (See First-Offense DWI/DUI in New York for more detailed descriptions of the different offenses that a driver who’s ingested drugs or alcohol can be charged with.)
Drivers who are at least 21 years old and get convicted of a DWI or DWAI typically face 90-day or six-month license suspensions. But for an underage driver, a DWI or DWAI conviction carries a one-year suspension. Also, motorists who are over 21 will typically have their driving privileges completely restored after completing the Impaired Drivers Program. Underage drivers who complete the program, on the other hand, will still have to complete the full one-year suspension period before being allowed to drive without restrictions.
New York’s DWI laws are extremely complicated and full of nuances. If you’ve been arrested or charged with a DWI or DWAI, an experienced DWI attorney can help you understand what you’re up against and what you should do next.