DUI Entrapment
Posted by Lawrence Taylor on January 18th, 2010Suppose 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".
So either he gets arrested for disobeying the police or he gets arrested for DWI. Great. The guy already saw what the cops were doing to his brother. Does the court realistically believe that when the cop ordered this guy to drive away that there was no violence implied if he had refused?
Let’s say a cop likes to hang out at bars after they close for the night. He sees someone obviously intoxicated and just standing around outside, as if they are waiting for someone to come pick them up. The cop approaches this person and says “you need to get in your car and drive away right now.” To me that implies “…or I’m going to arrest you for something (public intoxication, disorderly conduct, disobeying a police officer, whatever.)” The cop knows that this person is too intoxicated to drive, but he is ordering the person to drive anyway.
What is the person supposed to do? If he tells the cop that someone is coming to get him, he runs the risk of getting arrested for some nonsense. If he just goes and sits in his car, he could still get arrested for DWI. Any way you slice it, he’s probably going to get arrested….and he was trying to do the right thing by calling for a ride.
FWIW Mr. Taylor, I am glad that there are people like you out there. Thank you for fighting for people who get arrested for DWI and get their rights shredded. The deck is clearly stacked against them…..they need all the help they can get.
Comment by scottiek — January 19, 2010 @ 1:35 pm
And if the dude did do the right thing by not driving and calling for a ride,and the police arrested him anyway.Do you think the anti alcohol fanatics from MADD would say a word ? Nope…
Comment by standup — January 20, 2010 @ 8:16 am