Judges rarely issue written decisions in such minor cases but
Judge Dear examined the racial application of the law in forming his decision
finding that blacks and Latinos "are being disproportionately cited"
for violations of the Open Container Law. The court noted that after research
it found that in April 2012 more than 85% of the open container summonses were
issued to blacks and Latinos, and only 4% were issued to whites. The judge
opined that blacks and Latinos in Brooklyn were being disproportionately cited,
recommending that the police practice regarding enforcement of the Open
Container Law be scrutinized and "immediately stopped" if it was
found to be discriminatory. In his written opinion, Judge Dear said that a
laboratory test would be required in order to determine that a beverage
contained more than 0.5% of alcohol per volume as the law requires. Given the
cost of a laboratory test, the $25 fine usually assessed makes enforcement of
the law less likely. A NY Times article,
Sniff
Test Does Not Prove Public Drinking, a Judge Rules, reported that “police
in New York City wrote 124,498 summonses last year for drinking in public — far
more than for any other violation.”
Tuesday, June 26, 2012
Profiling in Open Container Enforcement?
Earlier this month, Brooklyn Law School alumni and Kings County Supreme Court Acting
Justice Noach Dear ruled in People v. Figueroa, 2012 NY Slip Op 22161 that police can no longer rely on their
training and experience in determining when someone is drinking alcohol in
public. Prosecutors charged Figueroa with violating New York City's Open
Container Law (New
York City Administrative Code § 10-125[b]) after an officer saw him with a
cup and identified the liquid as beer. At the defendant’s arraignment, Judge
Dear dismissed the information for facial insufficiency, noting that the charge
that the liquid was beer or contained more than one half of 1 percent of
alcohol was not supported by non-hearsay allegations such as a certified
laboratory test. Also, the information failed to state that the drinking did
not occur at a block party, feast or other function for which a permit was
obtained, an exception set forth in NYC’s Open Container Law.
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