- July 14, 2016 |
- Category: DUI and Courtroom Process
There is a serious battle against drinking and driving in Ohio and it’s not difficult to see why: (1) The Substance Abuse and Mental Health Services Administration reports that almost 30 million U.S. citizens admitted to drinking and driving in the 2013; (2) The Centers for Disease Control and Prevention reports that there are over 300,000 drinking and driving incidents every day in America; and (3) The National Highway Traffic Safety Administration reports that 27 people die in America every day as a result of drunk driving.
Clearly there is a legitimate public interest in trying to prevent drunk driving in Ohio and the rest of the nation. However, it’s important to recognize that many times, innocent citizens are wrongfully accused of drinking and driving. In addition, there are often extenuating circumstances that may explain a driver’s behavior and help the rest of us understand why the person would drive drunk. Occasionally, law enforcement officers are responsible for a drunk driver getting behind the wheel. This rarity is called DUI entrapment.
In a Wisconsin DUI entrapment case, Travis Peterson, a fan of the Dave Matthews Band, had too much to drink when he went to see his favorite band play at a nearby venue in Milwaukee. Instead of trying to drive home after the show, Peterson decided to avoid a DUI and sleep it off in his car. At some point, Peterson was awoken by a State Highway Trooper who reported that he had to bang on Peterson’s car window for up to seven minutes, shine a flashlight in his face and turn on the his siren and lights before Peterson woke. Peterson said that the Trooper then ordered him to drive home so they could clear and close the parking lot near the venue. Given the circumstances, the officer should have known that he was ordering Peterson to drive under the influence of alcohol, and in doing so, breaking the law.
Shortly after Peterson drove out of the Milwaukee parking lot, he was arrested by a second Trooper for drinking and driving. Peterson lost the DUI case at the trial court level and appealed the decision to a Wisconsin Court of Appeals. The appellate court commended Peterson for doing the right thing by trying to sleep it off, and said the trial court was wrong not to let him argue that police had entrapped him for DUI. As a result, the case was reversed and remanded to the trial court for a new DUI trial where Peterson would be allowed to use the DUI entrapment defense. The court opined that a jury could find the trooper’s order to be excessive, even abhorrent. The court further stated that a jury might well conclude that the better action would have been to offer Peterson a ride, call someone for him, or something similar. https://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=37590
A common scenario I encounter as a DUI defense lawyer is when Ohio police officers wait outside of bars around closing time. I’ve personally represented many clients who were stopped when they exited a bar parking lot around 2am. Sometimes they were pulled over for drinking and driving, and other times, for a minor traffic violation that eventually led to an Ohio DUI. Is the entrapment defense available in such a situation? Is the police conduct considered entrapment? No, not in this situation. In Ohio, DUI entrapment occurs when law enforcement causes someone to do something illegal that they wouldn’t otherwise do. DUI entrapment is established where the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order to prosecute. DUI Entrapment is an affirmative defense under the Ohio Revised Code.
In conclusion, for someone to be able to use entrapment as a defense in an Ohio DUI case, the driver must be induced in some way or ordered to drink and drive when the officer knows the driver is intoxicated. Keep in mind that DUI entrapment is just one possible DUI defense utilized by top Ohio DUI defense lawyers. Experienced DUI lawyers understand that no Ohio DUI arrest is perfect. Most DUI investigations include a number of witnesses, including police officers and the personnel who collect, store and test chemical samples. These witnesses are human and they make mistakes. If you’ve been charged with an Ohio DUI, please contact an experienced DUI attorney for further information.
