Does Entrapment Apply to DUI Stops?
Many people often ask whether a DUI checkpoint is entrapment. Some ask whether it is entrapment when an officer who parks his or her patrol vehicle outside of a bar or another alcohol-serving establishment and catches a drunk driver.
Unfortunately, the answer is no in both cases, and the misconception lies in the common use of the word “trap” and the mistaken belief that it applies to the legal definition of entrapment.
In the case of People v. West, the court defined entrapment as “the conception and planning of an offense by an officer and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer. Persuasion or allurement must be used to entrap.”
Like many things in law, this rather confusing definition was later refined by the court in People v. Barraza when it said, “[T]he proper test of entrapment in California is the following: was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense?”
Simply put, entrapment is a defense when the officer forces someone to do something when that person would not have otherwise done so.
With a DUI, entrapment would occur if the police forced the driver to drink when they would not have done so or force the driver to drive when they would not have done so.
Neither is the case with DUI checkpoints or when an officer parks their patrol vehicle outside of an alcohol-serving establishment.
Although many people consider checkpoints to be “traps,” they do not fit within the legal definition of entrapment. If a drunk driver is stopped at a checkpoint, the officer has neither forced them to drink nor drive. If a drunk driver is stopped and arrested at a checkpoint, it’s because they chose on their own to drink and drive before the encounter with the officer. Similarly, if an officer spots a driver coming out of a bar, follows them out onto the streets, then pulls them over for a DUI, the officer has neither forced them to drink nor drive.
Additionally, in both cases, the officers had the legal right to be at the location where they were. DUI checkpoints time and time again have been held by numerous courts to be constitutional. In fact, in California, one of the requirements a DUI checkpoint must adhere to in order to be constitutional is that drivers must be allowed to lawfully turn away from the checkpoint (Yes, that’s right, drivers cannot be forced to go through a DUI checkpoint). When an officer parks outside of a bar, typically they are in a public space, such as a parking lot, where they have a right to be.
Having said that, just because a person is driving through a checkpoint or observed leaving a bar does not mean that the officer has a right to arrest them on suspicion of a DUI. The officer must have probable cause (the amount of evidence needed for an officer to make an arrest) to believe that a person is driving drunk before an arrest can be made.
At a checkpoint, the officer obtains the evidence (i.e. probable cause) needed to make an arrest by asking passing drivers whether they’ve had anything to drink, observing symptoms of intoxication, and, of course, breathalyzing drivers. Without additional evidence that a person is driving drunk, an officer cannot make an arrest.
Similarly, the mere leaving a bar does not give the officer probable cause that a person is driving drunk, although the officer may suspect the person is driving drunk. If, however, an officer observes a person commit a traffic violation after leaving a bar, they can be pulled over. The traffic violation stop can be used as a pretext to investigate for a DUI.
Can entrapment ever be used as a defense for a DUI? Consider the following.
A person goes to a bar to have a drink. Thinking that they might be over the legal limit of 0.08 percent blood alcohol content, they lawfully sit on a bench outside of the bar. A few minutes later, a police officer approaches the person and demands that they drive out of the parking lot. The person obliges, gets in their car, and drives away. As the person drives away, the officer stops and arrests the driver for driving under the influence.
Because the driver drove as a result of the officer’s demand when they would not have otherwise done so, entrapment may be a defense for the driver.
While this scenario is uncommon, it has happened. However, in the vast majority of California DUI cases, unfortunately the defense of entrapment cannot be used.