Sniff-Test "Evidence" Won't Wash in NYC

By McCarton Ackerman 06/15/12

Summonses for public drinking in New York will have to rely on stronger evidence than NYPD nostrils, a judge decrees.

The long nose of the law Thinkstock

Just because it smells like alcohol doesn't mean it is alcohol. That's the standard to which Brooklyn judge Noach Dear is holding the NYPD to when it comes to writing summonses for drinking in public; he's told them they have to prove the beverage in question is alcoholic and that a "sniff test" will no longer cut it. Police in NYC wrote 124,498 summonses last year for drinking in public—far more than any other violation—but Dear feels they're issued disproportionately to black and hispanic drinkers. "“As hard as I try, I cannot recall ever arraigning a white defendant for such a violation,” he writes. “I am hereby recommending that the practices and policies of the NYPD. with respect to enforcement of the open container law be scrutinized and immediately stopped if found to be discriminatory.” Although the $25 fine doesn't bring in that much money for the city, police are often gung-ho about issuing these summonses because it gives them the chance to check people for warrants. However, Dear's alternative for proving that a drink's alcohol content exceeds 0.5%—the threshold under the city’s open-container law—seems hugely expensive: he suggests having the NYPD conduct lab tests on suspect drinks.

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McCarton Ackerman is a freelance writer and editor living in Portland, Oregon. He has been a contributor for The Fix since October 2011, writing on a wide range of topics ranging from medical marijuana in Colorado to the world's sexiest drug smugglers. Follow him on Linkedin and Twitter.