DUI and the Defense of Entrapment


Imagine a scenario where a person leaves the bar, hops in their car, and drives out of the bar’s parking lot. Unbeknownst to the driver, a police vehicle was sitting in the corner of the parking lot with the officer just waiting for someone to leave the bar and drive away. Sure enough, the officer pulls the car over as soon as it leaves the parking lot and the driver is arrested on suspicion of driving under the influence.

Doesn’t seem fair, does it? And you might be thinking to yourself, “Isn’t that entrapment?” Unfortunately, the answer is no.

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?”

Simply put, entrapment can only be a defense to a California DUI charge if law enforcement forces a person to drink and/or forces them to drive when that person would not have otherwise done either. In our scenario, entrapment would not be a defense because, although the officer was waiting for drunk drivers, they did not force the person to drink at the bar nor did they force the person to drive away from the bar.

Having said that, 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.

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