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Were you charged with underage drinking in New York?


If you are under the legal drinking age in New York, even a small amount of alcohol in your system can get you into legal trouble. The penalties for those under the age of 21 who willfully drink alcohol and then drive are serious. While you may not go to jail, your license may be suspended or revoked.

One narrow exception to the law

In order to be charged with a zero-tolerance violation, you must have blood alcohol concentration (BAC) of 0.02% to 0.07%. Why does the BAC start at 0.02% rather than zero? There are a few situations where a positive test alcohol at a very small level may be acceptable, such as using mouthwash, taking communion at church or participating in a toast at a family wedding. However, don’t count on one of these narrow exceptions to get you off the hook if you are pulled over.

What happens if I am stopped by law enforcement?

If an officer pulls you over for suspected drunk driving, you will most likely be asked to take a breathalyzer test. If the law enforcement agent suspects you are under age 21, you can expect to be tested.

Your license may be revoked immediately for at least one year if you refuse to take the test. If you agree to the breathalyzer test, the slightest amount may result in suspension, revocation or even jail time.

What if I test positive for alcohol?

If your BAC test indicates that you have been drinking, the level of alcohol content in your system determines the legal consequences.

A BAC between 0.02% and 0.07% for those under 21 will lead to an administrative hearing with a judge at the DMV.
A BAC between 0.05% and 0.07% may lead to an additional charge of “driving while ability is impaired by alcohol” (DWAI). This requires a hearing in criminal court.
A BAC between 0.07% and 0.08% will result in your arrest, a DWAI charge and an appearance in criminal court.
A BAC over 0.08% may lead to a driving while intoxicated (DWI) charge and a number of serious ramifications.
Drunk driving and underage drinking charges should be taken seriously. While you may not end up in jail, the charge may remain on your record for three years or until you are of legal drinking age, whichever is longer. A charge or a conviction may impair your ability to find work or to obtain financial aid for college.

What should I do if I am charged with underage drinking?

Due to the serious nature of a charge, contact an experienced attorney for assistance. There are ways to fight alcohol use charges and, in the long run, a lawyer can save you time, money and a lot of heartache.

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James L. Riotto
Criminal Defense Lawyer

James L. Riotto is an accomplished criminal defense attorney serving clients in New York. With an extensive background in law enforcement and criminal prosecution, his approach to each case is unique and informed by years of experience with the New York criminal justice system. As a graduate from Albany Law School and before going on to start his own practice, James worked at the Albany County District Attorney's Office, where he helped prosecute many DWI offenses. His inside knowledge of the tactics used to gain convictions provides him with a particular advantage when defending against DUI and other criminal charges.

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Adam D. Staier
Of Counsel

About Attorney Adam Staier has spent the last seven years practicing criminal defense law throughout upstate New York and the Capital Region. He began his legal career through internships in civil law, indigent legal representation and federal energy law regulation. Finding a passion in criminal law, Mr. Staier held internships handling both prosecution and defense…

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William M. Swift
Associate Attorney

About William M. Swift is an associate attorney at the Law Office of James L. Riotto and brings 20 years of experience to our clients. His practice focuses on personal injury cases and criminal matters. He has successfully represented individuals in felony, misdemeanor cases. Additionally, he has extensive knowledge in DMV administrative proceedings involving suspensions…

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