NY Vehicle and Traffic Law § 1192-a: Operating a Motor Vehicle After Having Consumed Alcohol; Under the Age of Twenty-One; per se

While it is against the law for anyone to drive while intoxicated there are special rules for young drivers related to driving after consuming alcohol. In New York the legal drinking age is 21. Under the New York Vehicle and Traffic Law § 1192-a it is against the law for someone who is under the age of 21 to drive after consuming alcohol. As defined by this statute, "consuming alcohol" means that your blood alcohol content (BAC) is at least .02, far lower than the general driving while intoxicated (DWI) standard of .08. To be convicted under this statute it is not necessary for you to be intoxicated, or to show signs of impaired driving. The prosecutor must simply show that:

1. You were driving
2. You were under the age of 21
3. Your BAC at the time you were driving was at least .02

A 20 year old woman was hanging out at a friend's house where she had a beer. She then left and started to drive home. She did not feel intoxicated and was not driving recklessly. However, one of her taillights was broken. A police officer pulled her over because of the broken taillight. He smelled alcohol on her and ended up arresting her. A chemical test showed that her BAC was .20. The woman could be charged with operating a motor vehicle after having consumed alcohol under New York Vehicle and Traffic Law § 1192-a based on the results of the chemical test.

1. Driving while ability impaired: New York Vehicle and Traffic Law § 1192.1
2. Aggravated driving while intoxicated; per se: New York Vehicle and Traffic Law § 1192.2(2-a)
3. Driving while intoxicated: New York Vehicle and Traffic Law § 1192.3
4. Driving while ability impaired by drugs: New York Vehicle and Traffic Law § 1192.4

A police officer must have probable cause to pull you over. If you are not driving recklessly, the officer must have some other reason to suspect that you have committed a crime. If the traffic stop is unlawful because the officer did not have probable cause, then all evidence gathered from that unlawful traffic stop will have to be thrown out. If that happens the prosecutor will have no choice but to dismiss the operating a motor vehicle after having consumed alcohol charge.

Operating a motor vehicle after having consumed alcohol, under the age of twenty-one is a misdemeanor. The sentence will include the payment of a fine of $500-$1000, a jail term of up to 1 year, and license suspension of up to 6 months. For a second conviction within 5 years you will be charged with a felony. Your sentence will be up to 4 years in prison, a fine of $1,000-$5,000, and a license suspension of up to 1 year.

No person under the age of twenty-one shall operate a motor vehicle after having consumed alcohol as defined in this section. For purposes of this section, a person under the age of twenty-one is deemed to have consumed alcohol only if such person has .02 of one per centum or more but not more than .07 of one per centum by weight of alcohol in the person's blood, as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article. Any person who operates a motor vehicle in violation of this section, and who is not charged with a violation of any subdivision of section eleven hundred ninety-two of this article arising out of the same incident shall be referred to the department for action in accordance with the provisions of section eleven hundred ninety-four-a of this article. Except as otherwise provided in subdivision five of section eleven hundred ninety-two of this article, this section shall not apply to a person who operates a commercial motor vehicle. Notwithstanding any provision of law to the contrary, a finding that a person under the age of twenty-one operated a motor vehicle after having consumed alcohol in violation of this section is not a judgment of conviction for a crime or any other offense.

If you are under the age of 21 and are facing a charge of operating a motor vehicle after having consumed alcohol, you are at risk of losing your driver's license for several months and you may spend time in jail. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who have been charged with reckless driving, DUI, vehicular homicide, and other serious crimes. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of larceny in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.