New Jersey DWI Law and the “Quasi-Entrapment” Defense

If you have been charged with alleged driving while intoxicated (DWI) in New Jersey, numerous different defenses are potentially available to you, depending on the facts of your particular case. The prosecution has the burden of proving guilt beyond a reasonable doubt. This means that they must present solid evidence of every element of the offense described in the DWI statute. New Jersey treats DWI as a traffic offense, and it is important to understand how DWI cases can differ from criminal cases as a result. Some defenses that are available in criminal prosecutions are not necessarily available in a DWI case. The New Jersey Supreme Court has held, for example, that the “entrapment” defense is not available to DWI defendants.

“Entrapment” involves a claim that law enforcement encouraged or induced a defendant to commit an offense they would not otherwise have committed. The U.S. Supreme Court stated in a 1992 decision, Jacobson v. United States, that the government cannot “originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime” in order to prosecute that crime. Courts place an emphasis on the defendant’s “innocence.” In order to overcome an entrapment defense, prosecutors must prove beyond a reasonable doubt that the defendant was already “disposed to commit the criminal act” before government agents came to them with the idea.

The New Jersey Supreme Court considered whether a defendant charged with DWI could raise a “quasi-entrapment” defense in State v. Fogarty, also in 1992. At the very beginning of its decision, the court describes the defense theory as “novel.” According to the opinion, the defendant was attending a wedding reception on the night of his arrest. Since he had been drinking, he had arranged for someone to drive him home and for someone else to drive his truck home.

An argument, which turned into a fight, broke out in the parking lot over who would drive the defendant’s truck. The police arrived and restrained one of the men. The defendant, who had not been involved in the fight, reportedly asked the officers to not be so rough. An officer ordered the defendant to leave, and the defendant claimed that he believed he would be arrested if he did not comply. The defendant got into his truck, started the engine, and backed the truck into a police vehicle. He was arrested and charged with DWI.

The defendant raised a quasi-entrapment defense, arguing that he would not have been driving but for the police officer’s order to leave the premises. He did not claim that the police officer actively solicited him to commit DWI, since the officer did not know he had been drinking—hence, the “quasi-” portion of the defense. After conviction in the municipal court and Law Division, the Appellate Division reversed the conviction on the grounds of “fundamental fairness.” The Supreme Court reinstated the conviction, however, noting that New Jersey defines entrapment in a way that involves “an abuse of lawful power, [that] perverts the proper role of government, and offends principles of fundamental fairness.” It found that, while the outcome seemed unfair, the defendant had not established an abuse of power by police.

DWI attorney Evan M. Levow has dedicated his entire law practice to advocating for people facing alleged DWI charges in New Jersey courts. Contact us online or at (877) 593-1717 today to schedule a free and confidential consultation with a member of our knowledgeable and experienced team.

More Blog Posts:

Use of High Beams Does Not Justify Traffic Stop, According to New Jersey Supreme Court, New Jersey DWI Attorney Blog, September 29, 2016

Defendant in New Jersey DWI Case Challenges Admissibility of Alcotest Results, Claiming Spoliation of Evidence, New Jersey DWI Attorney Blog, August 22, 2016

New Jersey Appellate Court Considers DWI Defendant’s “Confusion” Defense, New Jersey DWI Attorney Blog, August 16, 2016

Contact Information