Here's How To Avoid A Ticket For Drinking In Public

is the risk that freewheelin' swillers take, even if it's on their own stoop. But were you aware that unless the police officer is able to ascertain the specific brand of alcohol you're drinking, your ticket is likely to be tossed? Call it "The Brand Loophole" or Freedom, it's true.

We were alerted to The Loophole by Sue Funke, who was busted for drinking wine ("White wine, we're bougie bitches.") in Prospect Park on Memorial Day along with her four friends. When she recently showed up for her court date in Red Hook, a police officer remarked, "What are you doing drinking out of the bottle in the park? Ya gotta go to McDonald's dump out the drink and then pour in the booze."

Pressed for more information, Funke claims the officer said, "Did they write the brand down of the wine? If they don't write the brand it doesn't count. Like, ya can't just write beer it's gotta be Budweiser Beer. This law is ridiculous." In fact, "they" did not write down the brand. Funke and her friends were told by the judge that their tickets were "defective" because they lacked the information, and with a stern warning, their cases were dismissed.

"As a general matter, the police must note on the summons the actual brand of alcohol or do a lab test," attorney David Rankin of Rankin & Taylor says. "The reason for this is the statute says the drink must contain more than 0.005 by volume in order to fall under this law.  So, the court must have reason to believe the beverage in question has more than 0.5% or the summons gets tossed."

Rankin points to the recent case that galvanized The Loophole: The People vs. Julio Figueroa. In May, Figueroa poured a beer into a paper cup in his Greenwood Heights home then walked down the block, when he was stopped by three police officers in a cruiser. "It's not like I was staggering," Figueroa told the Times. Nevertheless, police wrote him a citation based on their own "smell test" (the same Dadalyzer technology that fathers have been using on their teenagers for centuries) and even searched the trash for a beer can as evidence.

But Figueroa's ticket was tossed by Brooklyn Judge Noach Dear, who wrote in his opinion, “While the arresting officer’s professional training and sense of smell may be sufficient to support his conclusion that defendant was drinking beer, such does not support the conclusion that the beer contained more than one-half of one percent of alcohol by volume.” Judge Dear also analyzed drinking citations in Brooklyn and found that 85% of them were issued to blacks and Latinos (no!). “As hard as I try, I cannot recall ever arraigning a white defendant for such a violation,” Judge Dear wrote.

So as a check on the NYPD's policy of relentlessly ticketing a disproportionate amount of black and brown people, the state must either write down the brand or prove that what you're drinking is alcoholic. Raise your glass of nondescript "liquid" to Mr. Figueroa!

With additional reporting from Jen Carlson