Occasionally, a Fort Lauderdale DUI attorney will come across a case where a police officer orders an impaired individual to get into his or her own vehicle or to move a vehicle. For instance, an officer may direct a defendant to get into his or her own vehicle to "sleep it off." The officer may also order that an impaired individual move a vehicle because it is blocking another vehicle or a driveway. If an officer arrests the person under these circumstances, the defendant by and through his Fort Lauderdale DUI attorney may raise an entrapment defense. For more information visit "Fort Lauderdale DUI"
Munoz v. State
A Fort Lauderdale DUI attorney may simply look to Florida law which establishes the rules that apply to the subjective test for entrapment. This statute was interpreted in Munoz v. State. "The subjective test set forth is the test to be applied on the issue of entrapment in the absence of egregious law enforcement conduct." The term "egregious law enforcement conduct," refers to conduct that violates the Due Process Clause by offending one's sense of justice. Where the police have engaged in such conduct the court must dismiss the charge. The elements of entrapment are also set forth in the jury instructions.
The statute, Munoz, and instructions define the rules regarding burdens under the subjective test which apply to all entrapment defenses.
These rules are as follows:
(1) The defendant must establish by a preponderance of the evidence that a government agent induced commission of the offense.
(2) If the defendant meets that burden, then the defendant must produce some evidence that he or she was not predisposed to commit the offense.
(3) If the defendant produces this evidence, then the State must prove beyond a reasonable doubt that the defendant was predisposed to commit the crime, both prior to and independent of the government acts.
Where appropriate, a Fort Lauderdale DUI attorney should always argue that entrapment instructions be submitted to the jury. The defendant need not convince the trial judge of the merits of the defense to be entitled to an entrapment instruction. It is sufficient if the evidence suggests the defense. If, however, the undisputed facts establish that the government induced the commission of the crime and there is insufficient evidence of predisposition, then the trial judge may rule on the issue of predisposition as a matter of law.
Interestingly enough, there are no Florida appellate cases on the entrapment defense in a DUI case. Fort Lauderdale DUI attorneys must, consequently, rely on a few out-of-state courts that have recognized its availability in such cases. Others, however, have rejected the defense. In the cases rejecting the defense there have been strong dissenting opinions. In Fogarty, Justice Stein and two others argue that the State should be estopped by the fact that the defendant was responding to a lawful order of a police officer.
Albaugh v. State
In Albaugh v. State, the Indiana Supreme Court distinguished Fogarty. The Court found that the defendant was entrapped as a matter of law. The defendant's truck was parked on the side of the road a short distance from his house. He decided not to move it until the next morning. A deputy came to the defendant's house, and told him that it had to be moved. When the defendant moved the vehicle, the deputy observed that he was driving erratically and arrested him for DUI. On appeal, the court placed great weight on the fact that a law enforcement officer played a direct role in getting the defendant to leave his home in the middle of the night to move his vehicle.
One of our Florida DUI judges applied the entrapment defense in an unusual DUI case. The defendant had been drinking and was obviously drunk. He was staying at a motel. A motel employee had trouble with a woman who used the phone in the defendant's room. The police were called to the motel, and got into an argument with the defendant, and ordered him to leave. The officers made no arrangement for the defendant's transportation nor did they make any inquiry as to how he would leave the premises. The defendant was willing to pay the motel and had caused no trouble with the motel employee. Minutes after the defendant drove away, an officer arrested him for DUI two blocks from the motel. In a non-jury trial the judge found the defendant not guilty based on the entrapment defense. The Florida DUI judge found that the police conduct, "created a substantial risk that the offense of DUI would be committed by someone who was not ready to commit it." The court also concluded that the quick arrest after the defendant had been ordered to leave the premises led to the conclusion that the officers' purpose was to get evidence of a crime that the defendant was not ready to commit.
Fort Lauderdale DUI attorney note however, that another Florida DUI judge more recently rejected entrapment as grounds for dismissal in a DUI case. The case illustrates some of the important aspects of this defense. Deputies were called to an alleged domestic violence. They were arresting the mother of a minor child who was present. She was allowed to call her sister to take the child. The sister was the defendant in this case because she drove up in an impaired state. The defendant argued that the case should be dismissed because she was entrapped. The court rejected this contention because the issue was for the jury and there was no evidence that law enforcement induced the defendant to drive and to be under the influence. The defendant's sister chose to ask the defendant to come and nothing suggested that the sister cooperated with law enforcement and knew that the defendant was impaired.
A trial judge dealt in a different way with what seemed to be entrapment. The vehicle was stopped at a roadblock and officers directed the driver to exit, but they left the keys in the ignition despite the fact that the passenger was observably intoxicated. While officers were dealing with the driver the passenger attempted to drive away. Officers stopped the passenger and arrested him for DUI. The trial judge found the arrest to be illegal and granted a motion to suppress because "law enforcement essentially facilitated the driving or actual physical control element" of the offense.
While a case for entrapment can be asserted by an experienced Fort Lauderdale DUI attorney in some instances, the defendant should proceed with caution. If the defendant has prior DUI convictions, there are serious evidentiary consequences resulting from reliance on the entrapment defense. For instance, in meeting its burden to show predisposition, the State "may make ‘an appropriate and searching inquiry' into the conduct of the accused and present evidence of the accused's prior criminal history, even though such evidence is normally inadmissible." This does not generally permit the State to present evidence of similar crimes committed after the charged offense. The subsequent crimes may, however, be sufficiently close in time and place for the trial court to properly admit such evidence. Thus, in Kent v. State, the court ruled that the trial judge did not abuse his discretion by admitting evidence that the defendant had sold narcotics at the same location five days after the charged crime. This evidence tended to prove pre-disposition.
For more information about this type of case contact:
Defense Attorney William R. Moore (954) 523-5333