New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT

25 BEAVER STREET
NEW YORK, NEW YORK 10004

Eliot Spitzer
Governor
Eric R. Dinallo
Superintendent

The Office of General Counsel issued the following opinion on May 14, 2007, representing the position of the New York State Insurance Department.

Re: New York Zero Tolerance Law

Question Presented:

What effect does a violation of Veh. & Traf. Law § 1192-a have on automobile insurance premiums and eligibility?

Conclusion:

An insurer transacting business in New York may not increase an automobile insurance policy premium as a result of a violation of Veh. & Traf. Law § 1192-a, but may cancel the policy pursuant to N.Y. Ins. Law § 3425(c)(1)(B) (McKinney 2007), if an underage driver’s license is revoked or suspended as a result of the violation and the driver is the named insured under the policy or a person who customarily operates the vehicle insured under the policy.

Facts:

The query is of a general nature, without reference to particular facts.

Analysis:

Veh. & Traf. Law § 1192-a, commonly known as New York's Zero Tolerance Law, makes it unlawful for a person under the age of 21 to drive with any measurable blood alcohol content ("BAC") between .02% and .07 %. Section 1192-a provides, in relevant part, as follows:

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.

Thus, by the plain terms of the statute, an individual under the age of 21 may violate Veh. & Traf. Law § 1192-a even if not legally intoxicated. See Veh. & Traf. Law § 1192(2) (stating that a person must have a BAC of .08% or above to be found guilty of driving while intoxicated).

N.Y. Ins. Law § 2335(a) (McKinney Supp. 2007), which is pertinent to your inquiry, governs surcharges for certain traffic infractions. It provides in relevant part:

No insurer authorized to transact or transacting business in this state, or controlling or controlled by or under common control by or with an insurer authorized to transact or transacting business in this state, which sells a policy providing motor vehicle liability insurance coverage in this state shall increase the policy premium in connection with the insurance permitted or required by this chapter solely because the insured or any other person who customarily operates an automobile covered by the policy:

(a) has been found guilty of a traffic infraction under any of the provisions of the vehicle and traffic law provided, however, that this provision shall not apply to a conviction for a violation which occurred during the thirty-six month period ending on the last day of the fourth month preceding the month of the effective date of the policy if such conviction consisted of:

* * *

(4) operating a motor vehicle while intoxicated or impaired by the consumption of alcohol…

Since an individual under the age of 21 is not necessarily legally intoxicated or impaired if the individual's BAC is between .02% and .07%1, Insurance Law § 2335 would not apply. Therefore, the insurer may not increase a policy premium as a result of such violation.

However, Insurance Law § 3425(c)(1)(B), which applies to non-commercial automobile policies, permits an insurer to cancel a policy if the named insured’s license is suspended or revoked. That statute provides in pertinent part:

(c) After a covered policy has been in effect for sixty days, or upon the effective date if the policy is a renewal, no notice of cancellation shall be issued to become effective… unless it is based on one or more of the following:

(1) With respect to automobile insurance policies:

* * *

(B) suspension or revocation during the required policy period of the driver’s license of the named insured or any other person who customarily operates an automobile insured under the policy…

Because a violation of Veh. & Traf. Law § 1192-a may result in a suspension or revocation of the violator's license, see Veh. & Traf. Law § 1194-a, an insurer may cancel the policy if the license is suspended or revoked, and the violator is the named insured or a person who customarily operates an automobile insured under the policy.

For further information you may contact Principal Attorney Paul A. Zuckerman at the New York City Office.


1   SeePeople v. Cruz, 48 N.Y. 2d 419 (1979) (holding that since the term "impaired" is very subjective, a court must use the surrounding circumstances as well as the results of a BAC test to determine whether an individual’s driving was impaired due to the consumption of alcohol).