DUI Entrapment?


I’ve had several people ask me if it is considered entrapment when law enforcement wait outside of bar or restaurant so that they can arrest people for driving under the influence when they leave in a vehicle. The answer is no.

Entrapment occurs when law enforcement causes someone to do something illegal that they wouldn’t otherwise do. Therefore, for someone to be able to use entrapment as a defense to a DUI charge, they must to be compelled to drink and drive or drive when the officer knows they are already intoxicated. For example, it may be entrapment if an officer sees you sleeping in your car, discovers that you are intoxicated upon waking you, and then instructs you to drive home. However, if the police are waiting outside of a bar, they are in a public place which they allowed to be. If you drive away from the bar while intoxicated, the officer has not done anything to compel you to drive drunk.

Remember that before an officer can pull your vehicle over, he must have reasonable suspicion that criminal activity was taking place. Driving away from a bar or restaurant, by itself, does not give an officer reasonable suspicion that criminal activity was taking place. It will suffice if the officer pulls you over for a minor traffic violation with the pretext of investigating you for a DUI.

So if you get charged with DUI after leaving a bar or restaurant and the officer had no reasonable suspicion to pull you over or you did not commit any traffic violations, you may have a good defense. Any evidence obtained after an illegal stop is inadmissible, including evidence which may support a DUI conviction.

Also remember that officers do not need reasonable suspicion to stop you if you pass through a sobriety checkpoint. See my previous post on the constitutionality of sobriety checkpoints. So don’t be surprised if law enforcement set up sobriety checkpoints near bars and restaurants. Doing so is not entrapment.

This entry was posted in DUI Arrests and Procedures, DUI Checkpoints, Field Evidence, Field Sobriety Tests and tagged , , , . Bookmark the permalink.

25 Responses to DUI Entrapment?

  1. Christian Dodds says:

    What if you are outside of the bar waiting for a cab and the officer tells you that you need to get in your car and leave now. The officer even orders the val-lay to get your car. Is it entrapment now?

  2. Ruth says:

    You are in a casino, had a few drinks, you are normally loud.You are dogged by the security. When are in the process of leaving, Security asks you to leave, they want to excort you. They say they have a cab waiting outside.(It’s there merely so they can say this,with no intention of using it). You continue to walk out 15-20′ in front of them. You & they pass the cab, w/no gesture or mention of such a ride. They ask your friend which car is yours, friend states(unbeknowns to them a random one, because he knows what they are doing.)They get on the radio and radio to Scottsdale police,sitting outside the Casino, which vehicle the friend mentioned, including the licence plate number. If you get a Dui, you also may have your car confiscated on the Indian Res,& you may never get it back. You go to where your car was, your friend who had the keys, is driving your car around looking for you. You cannot find them, nor they you.Your phone and wallet is in your car. You go back inside to try to find the friend who is staying the night so you can call & get a ride.You are confronted by at least 7 police, who threaten you with a tazer placed to your head, then taz you at least 3x in your side or more, tackle you to the ground, by the gambling tables,hog tie your hands and your feet, w/o ever telling you what they are arresting you for,(asked them 10x at least repeatedly) dragged you by your belly through the Casino, hit you with the stick,bashed your head against the squad car. You even try to explain why you were trying to find your friend- they do not listen. Now in jail since 2nd week in June for over reacting to their harrasment and treatment. The police are saying you said things, that are not true. May God have Mercy. If this is not entrapment of some kind or kinds, I do not know what is? 1class 6,3mist,because of their actions, and his reaction.

  3. Ruth says:

    What does a criminal lawyer think of my question above?

  4. Chet Smith says:

    Our son came home on a train from NYC to our town. He had called me beforehand to tell me he had been drinking and called me from the train for me to pick him up at the station. On previous occasions when my son has been drinking he would call me from the train as he did this time and I would come and drive him home.
    When he got to the station he noticed two police SUVs in the station parking lot. He was the only passenger to get off the train. He spoke with the two officers, told them he had been drinking and that I was coming to take him home. I didn’t hear about this conversation with the police until later. At this point it seems that the situation was on the way to being resolved without incident.
    When I got to the station there were no police in the parking lot and my was sitting in his car waiting for me. I asked him how he felt and he said he was OK. I judged his speech and appearance then made a terrible judgment. I told him to follow me home where I would set the speed. This took place at 2 AM. We had to travel a distance of 1.2 miles on well lit roads with no cars or pedestrians present.

    As we left the lot a police SUV (driven by one of the officers he spoke with earlier) immediately came from out from under cover turned on his flashing light and my son pulled over. This total distance covered by my son’s car from roadway entry to stop was about 50 yards. The police officer said he noticed a non-working brake light on my son’s car (true)and said my son had swerved over the centerline (in the distance of fifty yards after going through an odd left turn this was possible but hardly a solid reason). I contend that the officer knew my son had been drinking (he told this police officer so earlier and that officer had the opportunity to make a professional evaluation of physical condition).
    Apparently this is NOT entrapment, but certainly less the moral and possibly deceitful! I guess entrapment doesn’t have the same standing in traffic violations as it does in criminal cases.
    We live in an NJ town of less than 6,000 residents with a town police department. The police told me he was a gentleman from the time they first spoke with him and throughout the entire arrest, DUI testing and release.
    My question is why, if my son treated the police as gentleman with courtesy as gentleman, did they repay his courtesy and respect with deceit?
    The eventual arresting officer could have shown the same courtesy he was shown by staying with my son until I arrived to be sure he would be safe. He stayed at the station anyway, but chose to make extra effort to hide out of sight. What benefit could he have thought he was conferring on the community and my son to do what he did? Given the severity of the consequences why wouldn’t the police officer “protect and serve” (as the motto claims) my son and the community by staying with him until I arrived?
    I am both stunned and outraged by his actions. I can see this as only a mean and deceitful act by one officer to cause considerable damage to our son. This was truly sad, pitiful behavior on the part of this officer. I certainly do not see him as deserving the respect or trust of the members of our community. If this was standard police procedure for our town, I think our police department needs to rethink this procedure considering the damaging consequences.

    I appreciate your opinion.

    • Stan says:

      My opinion? How about taking some personal responsibility? Your son tells the police he has been drinking, and then expects them to give him a free pass when he chooses to get behind the wheel of his car to drive because he is nice to them? Are you kidding me? And what about you, advising your son to drive after knowing he was drinking? You lived a mile away! You couldn’t just drive him home and bring him back the next morning to pick up his car? You are what is wrong with this country, blaming the police for doing their job! What, you think people can’t be killed by drunk drivers in a 1.2 mile stretch of road? Pathetic.

      • Chet says:

        Yes, I do take personal responsibility. I made a bad decision about my son’s condition. I did not know my son was drinking. He didn’t tell me so, I didn’t ask. I asked if he was OK and he said yes. But here the plot gets more involved. We went to a hearing and lost this in spite of the officer lying about the conditions of the arrest!
        The officer claimed he left my son at the station believing he was telling the truth. [I have since posed the hypothetical of this situation to several police officers. All gave me the answer thqat of course they would remain at the station with the son if for no other reason than to protect him and others form the possibility that he was lying and might get in his car and leave as soon as the officer left.]
        Then he (the officer) claimed that he was returning to the station just a few minutes later he saw two cars leaving the station parking lot. As he passed the cars traveling in the opposite direction he recognized my son in one of the cars so he turned around and pulled him over. Besides putting this in writing in his Incident Report he swore to this under oath in court!
        Previously, we had asked for the video from the officer’s SUV of the incident. What we got was a video of the field sobriety test which was taken by another officer’s video cam. This was of some concern, so we asked for the video a second time. This time what we got was a video shot by the SUV cam of the arresting officer. His video showed he did not pass us on the road. Instead it shows that he must have waited until he saw me pull into the parking lot, he then went up to a crossing road made a 3-point turn and came back in time to see my car already pulled uot and going down the road followed by my son’s car just pulling out from a dark lot onto a dark roadway where he could not see who was in either car.
        So the officer lied when he repeated his Incident Report story under oath and was stunned when his own video shown in court proved the lie!
        Now some details.
        This officer had been on the force for less than 6 months at the time of this incident. Yet he felt secure that this video would not come to light otherwise why would he continue the lie if it could so easily be shown by his own video. The fact that he would do this shows that he certainly went well beyond normal police procedure. Either he is the problem or there is a culture within our own police department that allows this behavior – take your choice.
        Either way he and I deserve the huge majority of the blame for this incident while my son will pay the total penalty!
        If anyone would consider this fair application of justice, I could only wonder about their standards. We have seen some ugly incidents involving police on videos taken by citizens. Although no one was killed in this incident when an officer with less than 6 months of experience attempts this kind of behavior, what’s next?
        Thanks

        • sharon says:

          we are moving into living in a police state – you have to pretty much be careful every move you make – but – you can have some comfort – you have proved that the officer lies – nothing will be done immediately, but over a long period of time it may make a difference

        • Chaz C. says:

          Don’t change your story to feel better, you need to stay honest with yourself and the people you go to for help or advice if you want to learn what you are supposed to learn. In your first post you said your son told you he was drinking and you agreed to do what you have done multiple times, which is to pick him up and bring him back later. It doesn’t matter what the police said or did. They had a person who’d been drinking tell them he wouldn’t be driving, and then turn right around and get behind the wheel. They were doing their job. They might feel bad for your son because he was following your direction, but they can’t release him and arrest you for breaking the law, now can they? Rest easy though, ultimately the blame is on your son.. and hey, he might have also learned not to let other people make life changing decisions for him anymore, even if it is a parent. This whole conspiracy crusade you have enacted to shift blame onto the police officers might have uncovered something strange that needs to be looked into, but using it to clear your conscience is a little f-ed up. I realize this was awhile ago, and that it might be old news at this point, but I still felt like it needed to be said. Thanks for reading and sorry if I offended, that is never my goal.

        • ryan says:

          If you were able to prove the officer committed the act of perjury under oath.. a crime…then his testimony could have been thrown out because of it.. also if he lies under oath he is acting in color of office at that point.. to say he is no longer at that point he is no longer a police officer because he is holding his own best interest and credibility above is position of office …and once he lies under oath it could be argued that his testimony is not credible as a witness and if he was alone he has no witness with him at the point he stopped your son than no credible witness remains… except the camera.. which must show that the officer could prove by physical evidence he had indeed been drinking ie a breathalyzer test performed on the site where the stop occured. To warrant him to remove him lawfully under costody…this is my opinion it is not meant as legal council.

  5. wes says:

    I was recently at a buisness meeting in utah with my partner for work. I had my 9 year old son with me. It’s a small town, 6 pm to 7 had 2 beers. Then one coacktail. We waited till 10 and ate pizza. Kids played and we left. I need a pack of smokes, the only gas station was on the other side of town. It was 3 plus hours since my last drink, I was fine. I pulled into the empty parking lot and ran right in I was the only customer or vehicals ther, it took 45 seconds to come out and seen 2 officers by the gas pumps. I had no feeling of wrong and got in my vehicals put my seat belt on and started to reverse out of the stall when they turned on their lights and I pulled forward and turn off the vehical. They pulled behind me. One of the officers then approach my side I rolled down the window and he said there was a tip that I had been deinking. I said yes but it’s been a while. He then asked me to get out of the vehical for field sobriety test. I did them, I thought was fine but with my scared son it made it hard. He then arrested me my son left with a friend they let me call. At the jail I blew under the limit, they detained me for 7 hours then realest me with no bail to my friend.they in pounder my truck but my dad went and got it, the officers said to the impound yard they wanted to search it, never did.my question is is this entrapment? I did no moving violation and so on.
    Thanks, Wes

  6. Josh says:

    Listen when a cop walks up to your vehicle and says we have a tip that you been drinking you don’t tell them you have been drinking well it was two three four five hours ago you never told me been drinking one thing that they take it you have the right to remain silent anything you say can and will be against you so you would have said no that’s not true I don’t know where you got that information from and have any reason to pull you over from backing out of a gas station I think your story is a little miss guided like you’re not telling the whole truth but if it is that’s cool I’ll tell you story about me I left the bar I drink three pictures of beer within two hours I took three bottle glasses down left the bar drop my girlfriend off at the house and we took my truck got pulled over right after the bars were closing to go get some Taco Bell he made me do the whole sobriety test thing help me do the walking talking the counting numbers and all that stuff then he tested me for alcohol he kept asking me if I’ve been drinking I kept telling me no you said how long it been since you drink on time 10 years he didn’t believe that obviously I didn’t smell of liquor because the first thing I asked when you got me out of the car was he said it did I spray anything I said no and he says well I smelled something in the car I said I didn’t spray nothin you said what I think I smell alcohol I said assumptions is the mother of all f*** ups anyways long story short I left because I blew under the limit and since I’ve blue under the limit he asked me if I’ve been drinking I continue to tell him no therefore he had no reason to contain me

    • Chaz C. says:

      Well, I guess I’m glad you made it out of there, even if you probably shouldn’t have been driving. Anyway, please please please start using punctuation. I read the whole story, but it was difficult.

  7. Susan says:

    Hi,

    A law enforcement officer working under cover was at a bar that we were at and said goodbye to the bartender as we were entering. My fiancé was subsequently taken in for a DUI, and was eventually booked and tasered as a passenger during the process (Tased by said law enforcement officer). Isn’t this entrapment?

  8. Paul says:

    But cops lie all the time about about probable cause. They make things up on a regular basis. One I heard was he took the turn too wide, or too tight. One I had happen was I was clocked at 56 in a 35 after leaving a bar. I knew I had not and challenged her PC on the spot and she let me go because she had no radar record to back it up. But most people won’t challenge a cop. so, How can a citizen argue against a lying officer?

  9. Ramon says:

    I do trust all the ideas you’ve presented on your post.
    They’re very convincing and will definitely work.
    Nonetheless, the posts are too short for beginners.
    May just you please prolong them a little from next time?

    Thank you for the post.

  10. JT says:

    What if someone called the police and told them where you live and that you would be arriving home driving drunk
    Upon arriving home, the police were waiting for you. Is this legal?

  11. david miller says:

    left bar pulled onto a north bound street and police officer tried to hit me in the side of truck. this is the second timethis has happened in a3 month period. second timeI had a witness riding with me.can i also subpeonia a town police camera

  12. Sandy says:

    Sandra

  13. Sandy says:

    My husband is native American, and he’s been pulled over twice for no reason, he had to pick our5 yr old grandson up from school cause he was sick, a cop pulls in as he’s walking into the school and cop gets out and asked my husband” how much did you have to drink this morning?” My husband said he hasn’t had a drink since 1991,and the cop said blow in my face, my husband did,and cop said are you sure? And my husband said I’m very sure specially when it comes to drugs and drinking. My husband is a mentor and works at treatment centers and helps the youth, he’s very well respected by alot of people, anyway my husbnd then found out his licence was suspended and we were in shock because he’s always on that, it was over a ticket from expired tags and didn’t get letter cause we moved and a tragedy in the family happened” honestly ” isn’t that harassment? Profiling? I’m from Tahoe and when he said the cops are racist I didn’t believe him until I really started to see for myself, another cop pulled him povwr a week before that as well for no reason, he’s so upset and depressed about this, what do we do cause this iis a small town and very very corrupt tI never thought this kind of stuff hhappens,only in movies. What do we do? Please somebody give me some advice

  14. doug says:

    what if you ask the cops for a ride home and they say no, then you call a cab it doesn’t come so you go back the the cops and ask again for a ride and they say no again. then they leave a bit later you drive away then a block or so a different cop pulls you over and says he did so because we asked the other cops for a ride?

  15. Jen says:

    My boyfriend and I were at a bar the other week. We left the bar while having an argument and a police officer asked me if I were OK. I told him I was fine, and he asked if we were leaving. My boyfriend said yes and the police officer asked him if he had been drinking. My boyfriend told him he had a couple of beers and the police officer asked for us to wait an hour before leaving. Well, we stayed for 15 minutes or so and decided to take off. We were driving down a main road and the same police officer pulled us over and asked why my boyfriend was driving when he had told him to wait an hour. He asked my boyfriend to do a field sobriety test and my boyfriend said no so the officer asked him to do a portable breath test that would not be used in court and it did not take the place of a breath test on the BAC Datamaster machine so my boyfriend agreed. After my boyfriend blew a .98, the police officer arrested him and charged him with a DUI. My boyfriend was also charged with a controlled substance charge after a search incident to arrest. Is that legal? Can the substance charge be dismissed?

  16. KC says:

    A few months ago I went to a bar with some friends on an empty stomach. I ended up staying longer than I should have and having too many drinks but didn’t realize it until I got in my car and drove less than a mile. I realized I shouldn’t be driving and pulled into a parking lot, shut off my car and took the keys out. I was getting ready to call a friend to come get me when an officer approached my car. He didn’t have his lights on but said another officer had called me in. And then he told me to get out of the car for the field sobriety tests. I failed and failed the breathalyzer and they took me to jail. I would like to know if another officer saw me driving and swerve why he didn’t pull me over when I was in the act and if this was even legal for them to approach me in my parked and shut off car. And if it can be plead down to a lesser crime. I’ve never had any other tickets and the prosecutor doesn’t want to
    Budge because of my bac level. It was .15 I am very upset and have lost a lot of weight from anxiety and throwing up over this whole experience and I’ve watched several friends get dui’s as well as possession charges at the same time where theirs has been dismissed and plead down to inattentive or reckless driving. I am just wondering where I stand and if I have any rights where I was parked.

  17. anna fuhrer says:

    I was in the casino and they asked me to leave and i said why and they said you should go home and come back tommorrow ……well i just sat at one of the machines in a different area and another person came and told me to go…so I did and as soon as I pulled out the cop was there waiting for me……..I am sure they called the cop is that entrapment? Exactly what happened

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