Can someone use the defense of entrapment if law enforcement sits outside of a bar and watches someone drive away?
Unfortunately, no.
Entrapment occurs when law enforcement causes someone to do something illegal that they would not otherwise do. In other words, law enforcement must compel the person to do something illegal.
In the scenario above, law enforcement has not done anything to compel the person do drive drunk. Although we all know exactly what law enforcement is looking for when they sit in their patrol car outside of a bar, they have every right to do so. Merely observing from an opportunistic vantage point is not entrapment.
Having said that, law enforcement will still need probable cause to pull someone over on suspicion of a DUI. Walking away from an alcohol-serving establishment does not, by itself, give the officer probable cause to stop someone from drunk driving. Additional independent evidence of drunk driving will be needed.
If, however, the officer pulls someone over after observing them leave a bar and commit a traffic violation, any observable symptoms of intoxication during the traffic stop would suffice as probable cause.
For the same reasons, sobriety checkpoints also do not constitute entrapment. Although they’re set up to “entrap” drunk drivers, they to do not compel anyone to drive drunk. Therefore, someone arrested for DUI after driving through a checkpoint cannot use the defense of entrapment.
So when can a person use entrapment as a defense to a DUI?
Believe it or not, cases of officers coercing a person to drive after they have been drinking are more common that one may think. Take, for example, the case of Travis Peterson. The Wisconsin man drank too much at a concert. Instead of driving home, he decided to sleep it off in his car. Police told Peterson that he had to drive home because the parking lot was closing. After driving away, Peterson was arrested for DUI. The court presiding over Peterson’s case held that he could use the defense of entrapment.
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