Drunk Driving Entrapment
Posted by Lawrence Taylor on July 7th, 2009Suppose a police officer asks or orders an individual to drive a vehicle — and then arrests him for DUI when he complies? This situation comes up more often than you might think. Take, for example, the following case that eventually made its way to the New Jersey Supreme Court….
The defendant asked his brothers at a wedding reception to drive him home because he was too intoxicated to drive. In the parking lot, however, the brothers got into a fight, attracting the attention of local police. One of the officers struck a brother with his nightstick. The defendant asked the officer to quit hitting his brother. The officer replied by ordering him to leave the parking lot. When the defendant did not immediately comply, the officer repeated the order and then forcefully escorted him to his truck. The defendant obediently got into the vehicle, started the engine — and backed into a police car. He was arrested for drunk driving.
At trial, the judge ruled that the defendant had failed to prove entrapment or duress as a defense, and he was convicted. On appeal, however, the conviction was reversed on grounds of quasi-entrapment — that is, the defendant should have been acquitted if he could show that but for the officer’s order to leave in the vehicle he would not have driven. The prosecution appealed this reversal to the state’s supreme court.
Incredibly, the Supreme Court reversed the lower court and reinstated the conviction. Its reasoning? "Obviously," the court said, "if the law were to permit [drunk drivers] to offer as a defense that they drove only because they reasonably feared that telling the police that they were drunk might lead to arrest, the invitation to offer a pretext would be clear".
The court continued its twisted logic: "No one ordered the defendant to get drunk and no one ordered defendant to drive drunk. The police did not coerce defendant into driving his vehicle through the use or threats of violence. The police officers merely ordered defendant to get in his truck and leave the scene of the fight…." (Emphasis added) State v. Fogarty, 607 A.2d 624.
This "no win" scenario is fairly typical of what I have referred to in earlier posts as "the DUI exception to the Constitution".
Just one question concerning the courts rational here..Lets say the “drunk “brother didn’t hit the patrol car in his attempt to depart the parking lot per the officer’s “orders”. And order was what it was.
So lets say he left sucessfully then got in a headon collision that resulted in death.
I’d really like to see what rational the court would use in regard to a senerio like that if it had happened. I remember reading about this case a while back and still can’t phantom how the court ruled the way it did. The man gets told by a public servant with a badge and gun to depart the premises, yet are found to not be responsible for any implications that may take place after “ordering” a citizen to do something, which, as this case showed, involved putting the public at risk if this person was actually drunk.
So much for public safety..
Comment by David W — July 8, 2009 @ 11:58 pm
Where I’m a wee bit hazy here is, did the officer order him to “leave” (as in walk away) or did the officer order him to get in his vehichle and drive away ?
Comment by standup — July 9, 2009 @ 4:55 am
From what I Saw it said he was escorted to his truck and told to leave – obviously the cop is telling him to get into the car.
Comment by Justin — July 12, 2009 @ 10:50 pm
That went right by me Justin. I re-read it, now I agree.
Comment by standup — July 13, 2009 @ 1:24 pm