What if the police used Entrapment in my DUI?
Often, people feel that their DUI involved entrapment by the police. In criminal law, entrapment exists where the actions of a law enforcement officer make a person commit a crime that they would have otherwise been unlikely to commit.
What if the police used entrapment in my DUI? Entrapment is defined by one source as “the conception and planning of a crime 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.” Translated from legalese, that means “you wouldn’t have done it if the police hadn’t set you up.”
The most common example in a DUI case is where an officer suspects that you were driving under the influence of alcohol or drugs, but you were no longer driving your car, or your car was already stopped. The officer then asks you to move your car, and since that is “driving”, they then arrest you immediately after doing so. Entrapment is an area that law enforcement does not like to talk about, as it implies police corruption. However, there is evidence that police officers have attempted to “trap” drivers in exactly this way in order to achieve a conviction.
What is used to prove Entrapment in a DUI?
The jury instruction in California instructs that it is the defendant’s burden to show entrapment. The instruction read in trial states as follows:
“Entrapment is a defense. The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard from proof beyond a reasonable doubt. To meet this burden, the defendant must prove that it is more likely than not that (he/she) was entrapped.
A person is entrapped if a law enforcement officer [or (his/her) agent] engaged in conduct that would cause a normally law-abiding person to commit the crime. “
In one case in California, People v. McIntire, the court mentioned that third parties that are asked by the police to have the defendant do the illegal act can also constitute entrapment, stating:
“The purposes of the entrapment defense can be fulfilled only if it is understood that one can act as the agent of a law enforcement official without realizing the identity of his principal; the unwitting agent, though he may not appreciate the true nature of his role, is nonetheless being manipulated as the officer’s tool in a plan to foster a crime and entrap its perpetrator. [Citing another case}, ‘The function of … enforcement officials is to investigate, not instigate, crime; to discover, not to promote, crime.’”
What if the police used Entrapment in my DUI? Usually, the defense of entrapment doesn’t mix well with the law in DUI cases, because the law considers a defendant voluntarily consuming alcohol (or drugs, for driving under the influence of drugs (DUID) cases), to be a contributing factor of the crime of driving under the influence. There is a defense of involuntary intoxication in a DUI case where a person was dosed with drugs or alcohol without their knowledge, however.
The courts consider that defendants are free to say “no” when asked to drive a vehicle under the influence, even if they may not know that fact. Officers who use violence or threats of violence to make the defendant drive are a different situation since in that case, the driver would not feel free to walk away. And driving under the influence because of a legal necessity to avoid a crime is recognized as a defense.
Contact us for questions. Orange County DUI Attorney Robert Miller is experienced with DUI defenses, and the court system in Orange County, and can ensure you receive the best possible representation if you have been charged.