Entrapment in DUI Cases

Posted by Lawrence Taylor on December 7th, 2010

Suppose 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 (N.J. 1992). 


This “no win” scenario is fairly typical of what I repeatedly refer to as the “
The DUI Exception to the Constitution”.
 

 

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  • Nelson Donnell

    Well, I hate to say this, but in this particular instance, I’d have to agree with the court, the defendant could have just as easily walked (or crawled if need be) from the parking lot and called a cab from some other location. Just because a cop tells you to do something doesn’t mean that you can pull the competing harms card out for a free ride.

  • standup

    >>The police officers merely ordered defendant to get in his truck <>the officer repeated the order and then forcefully escorted him to his truck.<<

    FORCEFULLY "escorted" him to his truck. Do you know what the word forcefully means?
    What do you think would have happened to this man had he refused to get in his truck and leave? If he was lucky,he would've ONLY gotten arrested on a slew of charges. Again,that's if he were lucky.

    Glad I could help…

  • standup

    >>The police officers merely ordered defendant to get in his truck <>the officer repeated the order and then forcefully escorted him to his truck.<<

    FORCEFULLY "escorted" him to his truck. Do you know what the word forcefully means?
    What do you think would have happened to this man had he refused to get in his truck and leave? If he was lucky,he would've ONLY gotten arrested. Again,that's if he were lucky.

    Glad I could help…

  • Nelson Donnell

    Sorry standup, but neither you, nor did the defendant, establish your belief of what “would have happened” as a matter of fact and that’s what triers of cases are normally suppose to be decided on, facts and not supposition or conjecture.

  • David W

    Nelson, do some more research on the case before making a spectlative assumption. The man “was” ordered to his truck. Not to walk away, not to return into the club..I’m sorry, the officer gave him no choice but to honor his order regardless.Or face civil disobedience of refusing a direct order..The cops actions caused the violation of the law. End of story…

  • Nelson Donnell

    The defendant could have easily used competing harms doctrine in his defense of not doing what you assume the cop wanted him to specifically do.

    If the defendant and others are going to go through life, jeopardizing peoples lives merely because a cop tells them to do something illegal, which was illegal to do, then he deserves what he gets. That argument of following orders of people in authority didn’t work for the Nazis at the war crimes trials, so I don’t see why it should work for this guy either. He was responsible for his own actions, civil disobedience is what brings about change, merely going along to get along will never bring change.

  • Nelson Donnell

    It should also be noted in this particular case that the defendant did not inform the officer that he had been drinking earlier that evening and that the court had ruled that the defendant did not actually prove by a preponderance of the evidence that he would not have driven his truck but for the police order.

  • standup

    For someone who “hated” to say it,you said it pretty good. I don’t have to “establish my belief” since I was not part of the defense in this particular case. What I believe is what I believe.

    You also can’t play both sides of the fence. If the Police order you to leave and you don’t,you’ll get arrested. If you leave and get pulled over,you’ll get arrested. If you leave (as the officer ORDERED him to do)you’d at least have the chance that you’d not be pulled over. If you stayed and disobeyed a lawful order from a Police officer, he’d already have his hands on you and you’d have NO chance of avoiding arrest.

  • Nelson Donnell

    I have to wonder standup, did you actually do a search on this case and read the full decision of the court in this matter. The reason I ask is because the presentation stated here about this case doesn’t appear to accurately represent what is stated in the actual court citing.

    The officer allegedly walked defendant over to his truck “after” he had previously ordered the defendant “to leave the parking lot”. Defendant did not inform the officer that he had been drinking earlier that evening. The truck’s engine was apparently already running (apparently previously started by one of the two brawling Leonard brothers). Defendant entered the truck, put it into reverse, and proceeded to back into a parked police car.

    The Defendant already had already ignored one order to leave the parking lot when he was first ordered to, and he did not informed the officer that he had been drinking that evening.

    With that said, it’s obvious that the defendant could have just as easily inform the officer of his lack of soberness and not enter the truck or he could have just reached in without getting into the truck and turned off the truck’s ignition, locked it up and walked away from the parking lot and retrieved his truck at a latter date when he was sober or made arrangement for someone else who was sober to drive his truck for him.

  • Nelson Donnell

    By the way, if the defendant had looked the cop straight in the eye and asked, “Are you going to do something wicked, mean and nasty to me if I don’t get into this truck and drive away from this parking lot?”, and the cop said “Yes”, then he could properly claim entrapment.

  • standup

    In all honesty Nelson,no I did not research the case or read the full decision of the court. I don’t think Mr. Taylor is a liar, do you?
    In all fairness, have you ever researched Police brutality,Or Police officers lying under oath? In court,if it’s your word vs. the police officer’s word,get the Vaseline and grab your ankles baby !

  • Nelson Donnell

    Now you’re trying to argue this case at hand off-point standup by going off into subject matter that had nothing to do with the case presented here and I’m not going to play that game. I’ve never said that Lawrence was a liar, just that the presentation stated here about this case doesn’t appear to accurately represent what is stated in the actual court citing. Staying on point with accurate details of the case can very often be the determining basis for either winning or losing a case.

    Perhaps if Lawrence would venture into exposing the true jurisdictional nature of licensing, insurance and registration, then he and others would understand how these activities are eroding the supposed protected rights of the American people.

  • standup

    >>by going off into subject matter that had nothing to do with the case presented here and I’m not going to play that game.<<

    Because you chose to dodge my question(s) does not mean that it was subject matter that had nothing to do with the case. Once again,I can man up and admit that all I know about this case is what I've read here. If you happen to personally know important facts about this case that are being omitted here,perhaps you should address that problem with Mr.Taylor himself. You will find that he is not afraid to answer questions put to him.

  • Nelson Donnell

    Here we go, another one of those catch phrase people in life who thinks that because someone won’t be lead off-point into subject matter that has nothing to do with the case at hand, then that person just must be dodging their questions.

    Look standup, just do the research on this case of State v. Fogarty, 607 A.2d 624 and read the footnotes, then you’ll see why the Common Law principles of entrapment don’t apply to this case.

  • standup

    Alright Nelson, I took your advice and looked it up. Let me tell you something buddy,I wish I hadn’t. It made me want to vomit. Then again,I have to make concessions. It was in New Jersey(Is it possible to be astounded but not surprised?) Why they don’t just blow up all the bridges and let the place float over to Europe is beyond me. We all have our own opinions of course…

  • Nelson Donnell

    Well standup, I didn’t promise you a rose garden. I personally view government as a criminal racketeering enterprise system comprised of a group of men and women who provide a service at the barrel of a gun and one must always remember that they have no real duty to protect anyone.

  • standup

    >>criminal racketeering enterprise system <<

    Amen to that brother. If the Mafia entirely ran the government,it would be making a profit. To me,DUI is a Cash Cow for the government.