By Eric Goldschein
Brooklyn Daily Eagle
The "sniff test," a time-honored NYPD tradition, is not a proper means for determining whether an open container contains alcohol — at least according to Brooklyn Civil Court Judge Noach Dear.
After years of presiding over public drinking cases, Dear wrote in a decision on Thursday that from now on, he will no longer recognize a police officer's olfactory hunch as proof that a defendant's beverage was illegally alcoholic.
“While the arresting officer’s professional training and sense of smell may be sufficient to support his conclusion that defendant was drinking beer,” he wrote, “such does not support the conclusion that the beer contained more than one-half of one percent of alcohol by volume.”
Now, officers will need absolute proof, such as a laboratory test of the liquid, to prove that the alcohol content was over the legal limit — not a sniff test and not even an on-the-scene admission from the defendant that a beverage is alcoholic.
Dear says that drinking citations are disproportionately doled out to minorities. Last year, 124,498 summonses were written for public drinking — more than any other violation — and in a survey of a month's worth of summonses by Dear's staff, 85 percent were issued to blacks and Latinos. In Brooklyn, where 36 percent of the population is white, only 4 percent of the summonses went to white people.
“As hard as I try, I cannot recall ever arraigning a white defendant for such a violation,” Dear wrote.
"He makes a valid point," Donna Lieberman, director of the New York Civil Liberties Union, told the Brooklyn Eagle. "The technical requirements of determining whether a beer is of sufficient strength to be covered under the law is not something that a police officer can smell and say, 'I know it when I smell it.'"
When asked whether the NYCLU had been aware of the racial component of the open container summonses, Lieberman noted that it had had a long-held suspicion. "But because the NYPD doesn't collect or publish racial data on summonses, even though it's recorded on the summons, there's been no hard data. The judge did us all a service in highlighting this. It's further testament to this two-tiered system of law enforcement here in New York."
By requiring the NYPD to provide proof of a drink's alcohol content, Dear is clearly looking for a way to discourage police officers from issuing the violations at all. As the only judge to publicly take this stand so far, the dent in the number of citations issued may be at first negligible.
It would take similar stances on the issue by other New York City judges to dissuade the NYPD from issuing their favorite citation.
Dear's introduction of a new discrimination battlefront comes as the NYPD plans to start phasing out the practice of recording race on their summonses, a change that will make further investigation of the NYPD's citations more difficult, according to the NYCLU.
"It's such a monumental hassle that people tend to hope that it will go away," Lieberman noted. "In this era of summonses frenzy, it's critical that we hold the police department to the highest standards."