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.
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