Entrapment Defense to a DUI Charge

The defense of entrapment developed in response to increasingly severe and sophisticated forms of law enforcement "stings" and other encouragement of criminal behavior. Defendants have claimed entrapment in cases involving a wide variety of criminal activity, but the defense is infrequently used in prosecutions for driving while intoxicate (DWI) or driving under the influence (DUI).

The primary justification for the entrapment defense is deterring official misconduct in law enforcement. The entrapment defense also is designed to distinguish between defendants who are sufficiently blameworthy to deserve criminal punishment and those who are not. Entrapment has two elements: (1) government action must have induced the defendant to commit the crime, and (2) the defendant must not have been predisposed to commit the crime.

A DUI/DWI-by-entrapment occurs whenever an intoxicated motorist is compelled, commanded, or induced to operate a motor vehicle by police and, by such command, is arrested for DUI/DWI. This scenario meets the first of the two elements of the defense, i.e. inducement. However, because a majority of states consider drunk driving a strict liability offense, it is difficult to overcome the second element because the motorist's predisposition to become intoxicated is statutorily assumed.

While a majority of jurisdictions have determined on the basis of the strict liability of its DUI/DWI statutes that the entrapment defense cannot be raised in such cases, other courts have allowed the entrapment defense where police officers, having knowledge of the motorist's intoxication, have nevertheless directed the motorist to drive in violation of the drunk driving statute. These cases indicate a willingness to utilize "estoppel" principles to balance the state's law enforcement interests with the public's interest in curbing inequitable or fundamentally unfair prosecutions. Thus, the entrapment defense was successful where a motorist was told to go home by a state trooper after passing a field sobriety test, but was later arrested for DUI after being stopped by a second state trooper 55 minutes later. The defense was equally successful where a police officer awoke a motorist who was sleeping in the parking lot outside a bar, told the motorist to move the car, then stopped the motorist on the road and arrested him for driving while under the influence of intoxicating liquor.