Entrapment as a Defense to a California DUI?

Posted by Jon Ibanez on May 10th, 2016

Many of my clients, especially those who have been arrested at a DUI checkpoint, often ask whether entrapment can be a defense to a California drunk driving charge. Another scenario where the defense of entrapment is inquired about is when an officer parks his vehicle outside of some alcohol-serving establishment and waits for an unsuspecting patron to hop behind the wheel after having one too many drinks.

Unfortunately in both scenarios entrapment cannot be used as a defense.

According to People v. West, (1956) 139 Cal.App.2d Supp. 923, 924, “Entrapment is 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.”

People v. Barraza, (1979) 23 Cal.3d 675, 689, simplified the definition of entrapment when it concluded, “[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?”

In other words, for purposes of a California DUI charge, law enforcement must compel a person to drink and/or compel them to drive when that person would not have otherwise done either.

An example of this would be when an officer finds an intoxicated person in a vehicle who does not plan on driving and the officer then forces them to drive. Since the person would not have driven but for the officer’s demand, an entrapment has occurred. Although unlikely, it has happened.

While DUI checkpoints may be viewed upon as a “trap,” it does not fall within the definition set forth above. People who drive drunk are already driving drunk when they happen upon a DUI checkpoint. Law enforcement is not compelling the drunk driver to drink nor drive.

Furthermore, 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.

Often times, officers will park themselves outside of a bar or other alcohol-serving establishment and wait until they see a patron drive away. This is when the officer pulls the person over.

If the person voluntarily drives away from the establishment drunk, the officer has not forced the person to neither drink nor drive. The officer is merely observing the illegal acts of a person from a public place where he or she has a right to be.

Now, the officer must have probable cause to believe that a person is driving drunk before an arrest can be made. 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.

Unfortunately, while both California DUI checkpoints and law enforcement bar stakeouts are intended to “trap” drunk drivers, neither give rise to the entrapment defense.

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