Sniff Test Doesn't Prove Public Drinking, Judge Says The police in New York City wrote 124,498 summonses last year for drinking in public - far more than for any other violation. After having to adjudicate so many of these public drinking cases, a Brooklyn judge has decided he has had enough. From now on, the judge, Noach Dear, has signaled, he intends to hold the police to a highly impractical standard if they want to issue a summons for drinking alcohol from a cup: The police must prove that the beverage in question was alcoholic. The sniff test, he wrote, was not enough. Judge Dear made his intentions known in a written decision released on Thursday in a run-of-the-mill Criminal Court case: Julio Figueroa, 38, was cited for illegally drinking a cup of beer on a city sidewalk near his home in Greenwood Heights, Brooklyn. It was not sufficient, the judge wrote, that a police officer had smelled the contents of Mr. Figueroa's cup and detected beer. Nor was it enough that Mr. Figueroa had told the police officer that, yes, the liquid was indeed beer. In dismissing Mr. Figueroa's case, Judge Dear wrote that the police should be required to adhere to a higher standard of certainty that the drink's alcohol content exceeded 0.5 percent, the threshold under the city's open-container law, before issuing a court summons. One way to do that, he suggested, would be for the New York Police Department to have a laboratory test conducted. Judge Dear made it clear that he hoped his interpretation of the city's public drinking law would persuade the Police Department to reconsider its enforcement of the ordinance. In his experience, he wrote, the department singled out blacks and Hispanics when issuing public drinking summonses. "As hard as I try, I cannot recall ever arraigning a white defendant for such a violation," wrote Judge Dear, a former city councilman who has handled mostly civil cases since his election to a judgeship in 2007. Judge Dear wrote that he had his staff review a month's worth of past public-drinking summonses issued in Brooklyn, and found that 85 percent of the summonses were issued to blacks and Latinos, while only 4 percent were issued to whites. According to census data, Brooklyn's population is about 36 percent white. "I am hereby recommending that the practices and policies of the N.Y.P.D. with respect to enforcement of the open container law be scrutinized and immediately stopped if found to be discriminatory," he wrote. The decision of a single judge is not likely to change the ticket-writing habits of the 35,000-member department. The fine that the city collects from such tickets is low compared with the penalty for other offenses - $25 per ticket - but each summons offers the police an opportunity to check the person for warrants, which police officers say is one of the reasons that the police are so energetic about enforcing quality-of-life violations like public-drinking offenses. But the zeal with which the police seek out opportunities to write public drinking tickets has angered some New Yorkers, particularly residents of housing projects who in interviews have said they resent it when patrol officers demand to sniff the contents of any plastic foam or paper cup from which they are drinking. Mr. Figueroa said that on May 12, he poured a beer into a paper cup at his home and went for a stroll outside, stopping outside a bodega as a friend went inside. "It's not like I was staggering," said Mr. Figueroa, noting that that was his first beer of the evening. As he finished his beer, he said, an unmarked police car pulled up and three officers emerged, asking him what he was drinking. "I wasn't going to lie," Mr. Figueroa said. They said they could tell it was beer by the way I was drinking it. The episode did not end with a ticket. One officer searched a nearby trash can for evidence of a beer can or bottle, while another ran his name through a database for warrants. In the end, Mr. Figueroa was arrested on what the police said was an outstanding warrant, although he said he was later told that there was a mix-up and that he did not have one. Mr. Figueroa, a chef, said he was of Puerto Rican and Honduran descent. He said that he had received several public drinking tickets in the past, but that this was the first time he had ever been "put through the system." He spent about 22 hours in jail before appearing before Judge Dear, who dismissed the case at the time, but issued the decision only this week. The judge pointed that without direct proof of the alcohol content of the beverage, citizens were at risk of getting a ticket for drinking nonalcoholic beer. "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."