DUI Entrapment. Hearing this week!

[pacific22]

What is the name of your state? CALIFORNIA

I'd like to get some advice on this issue. I have spoken to many different adults and lawyers already, however have yet to decide to get a lawyer. New Years Eve ( Jan 01/2007 ), I was attending a party for the evening with some of my buddies. I won't lie, I was drinking beers with my buddies - however, I was not drunk. A fight broke out inside the party between a few local guys and one of my buddies. One girl who was at the party had accidentally got hit, near her mouth. I grabbed her and pulled her away from the party. As I walking out the front door, cops were coming up to the door. I took her outside near her car and made sure she was OK. I was leaning against my car when I see my buddy come outside. Within 2 minutes, his enemies were also coming outside and heading near us. Behind them, were the cops (3-4 officers). They all had their hands placed on their weapons and were running up to us quickly to stop the commotion, yelling and to prevent another physical fight. As they were running up, they told me along with a few others to jump in our cars IMMEDIATELY and LEAVE. Everything was happening so quickly, I obeyed and did as they said. I got down nearly 400 feet before one of the same officers had pulled up behind me and pulled me over for my tinted windows, which were not rolled up at the time he pulled me over. He gave me one test while I was sitting in the drivers seat (which I passed) and then asked me to step out of the vehicle. He gave me 5 more tests (which I also passed) then followed it with a breathalyser test, which I failed. The legal driving BAC limit here in California is .08, for adults over 21. I'm 17 (seventeen), a minor, underage - therefore my limit is .01 or technically .00 (zero tolerance whatsoever). I failed with a BAC of .07, just under the legal limit for someone over 21.

From speaking with lawyers, they have said there are all kinds of different possibilities of getting out of this, but obviously are not guaranteed.

Entrapment:
I was told to jump into an illegal vehicle which they pulled me over in, minutes later. Why did they let me leave in a vehicle which was illegal in the first place?

I had no intentions of driving that night. In fact, permission was given from the owner of the house where the party was held for me to stay that night. I have been reading up on different topics in relation to my situation and decided to place this up:

Entrapment is a complete defense to a crime. This means a defendant is entitled to an acquittal if he committed the crime under circumstances constituting police entrapment.1 It does not matter that the evidence against the defendant was overwhelming, or that his guilt was undisputed.2 If he was entrapped, he goes free.

Found on this page: http://www.browardcrime.com/lea_052000_entrapment.htm

What is your advice on this?
Any advice will be appreciated!

 

[racer72]

Your problem is your definition of entrapment.

From Mirriam-Webster's unabridged dictionary:

1. the luring by a law-enforcement agent of a person into committing a crime.

The basis of your arrest was that you are a minor that had consume alcohol. The police did not entice you into the crime of drinking while underage. They also did not lure you into driving away, you could have walked away. Instead of speaking to lawyers, you and your parents need to hire one that will study the entire situation and come up with a defense for you.

 

[SillyPuddy]

Oh Boy.

Let me get this straight. The police told you to "jump in your cars and leave" rather than instructing you to walk away from the scene?

I can see why you feel this is an entrapment. This sounds very suspicious to me.

 

[BelizeBreeze]

DUPLICATE POST:

https://forum.freeadvice.com/showthread.php?t=352504

 

[pacific22]

Oh Boy.

Let me get this straight. The police told you to "jump in your cars and leave" rather than instructing you to walk away from the scene?

I can see why you feel this is an entrapment. This sounds very suspicious to me.

Thank you everybody for your helpful input.

Sillypuddy - This is exactly what happened and I truly feel this was a mistake on their part. Why would I obey to them at the time? (1) Everything was happening so quickly, so I reacted quickly. (2) I did not want to be arrested from the police for NOT obeying to what they have told us. (3) Because everything was happening quickly, I failed (my mistake) to think of other solutions instead of driving away in a CAR.

I have about 8-9 witnesses who can vouch for what they ran up and told us to do. I've had over 5 close friends die from either driving while under the influence of alcohol or has been in a fatal car accident where the driver was under the influence of alcohol.

I would never put myself at risk, nor the friends who were in the car with me at risk. Let alone put other people on the road at risk. And really, I wouldn't put my driving privileges at risk either.

These officers know every dirty trick in the book, I've been told MANY times. However, I understand they were doing their job trying to prevent more fights. Being said above about how I had no intentions to drive anything that evening, I feel there is some kind of board to walk across in court - even though its an old rusty board.

My DMV hearing over the phone is this Wednesday, mid afternoon. I'd like to tell this story to them, along with mention how the arresting officer failed to include many different key events during the arrest and leading up to the arrest into the police report I recently received in the mail.

I own one business and slowly starting a second businesses. I'm an unusual minor with a drivers license that I depend on very much. I'm extremely responsible and feel the drinking while underage was very un-responsible, don't get me wrong there. Most will not believe, but going out and having a few drinks with my buddies is not my typical Friday or Saturday night. In fact, New Years Eve was an unusual occasion and the last time I can remember drinking was under the presence of my parents, a few sips to be more specific.

Any additional advice will be greatly appreciated!!

 

[CdwJava]

My DMV hearing over the phone is this Wednesday, mid afternoon. I'd like to tell this story to them, along with mention how the arresting officer failed to include many different key events during the arrest and leading up to the arrest into the police report I recently received in the mail.

The DMV hearing will not be concerned about your defense to a criminal charge. The hearing is to confirm that there was reasonable suspicion for the detention, that you were properly identified, and that you were either at .08 or higher (for DUI), .05 or higher (for underage drinking and driving), or .01 or greater for underage zero tolerance.

It could be a defense to the criminal charge at court that you were ordered to leave in the car. Whether it will work or not will depend on the case your attorney can present.

- Carl

 

[SillyPuddy]

Pacific22

I appreciate the situation the officers were dealing with but here's the problem.

"I got down nearly 400 feet before one of the same officers had pulled up behind me and pulled me over"

There's no way the officers could have diffused a situation with the severity that they had their hands on their guns and then pull you over 400 ft. down the street. It would have taken much longer to diffuse the situation that that. Something's wrong.

 

[pacific22]

Pacific22

I appreciate the situation the officers were dealing with but here's the problem.

"I got down nearly 400 feet before one of the same officers had pulled up behind me and pulled me over"

There's no way the officers could have diffused a situation with the severity that they had their hands on their guns and then pull you over 400 ft. down the street. It would have taken much longer to diffuse the situation that that. Something's wrong.

I understand what you mean. However, it all happened like: 3-4 officers ran up to the situation to prevent a fight, not break up a fight. They told us to get in our cars and leave immediately, then watched us and even made sure we left. One of the guys had to tell me a second time while I was waiting behind another car to leave the neighborhood. My police report says exactly where I was pulled over, written by the officer himself and is actually less than 400 feet from the scene. I drive a Cadillac Escalade which displays the actual distance driven per day. As it was 12:37 AM, it a fresh new day and the gauge starts over so the gauge displayed 0 mi. for 01/01/07 which means there was no other driving made than from leaving the scene, where I was told.

To go back to the question: Why would they not instruct us to walk away or pile us up until the scene had been calm? Why tell a bunch of minors to drive away, a few minutes after midnight on New Years Eve? Placing a bunch of un-safe minors under the influence of alcohol on public streets just so they can take the pride of another arrest.

I left the street the party was held on, returned onto the main street, made the first right turn, then made a U-turn to return to the main street to literally find a place to just park. As I was coming up to the stop sign to the main street, one of the cops was speeding by. While I was stopped at stop sign, I looked to the right, he stepped on his brakes quickly and made a U-Turn in the middle of the road, then started heading back towards where the party had been held. So I make my right turn and head down the main street away from the party and he makes a U-turn in the middle of the intersection and gets on follows me closely. At this point, I'm driving a lot lower than speed limit because I'm more freaked out, then he throws on the lights and pulls me over. I'm pulled over for tinted windows that were rolled down. I explained to the officers that "I was pushed into my car to leave." Both officers laughed and said we wouldn't push you into your car. I re-explained and said "not physically, but I was told to leave." They said nothing. Also, the arresting officer had given me a test in the car which I passed, but failed to put this in the police report along with a few other items.

Apologies for the long response. Trying to be as clear as possible.

 

[CdwJava]

He gave you a "test" in the car? What kind of "test"? And what makes you think you "passed"?

It is also possible that the officer(s) that stopped you was not one of the officers who was in front of the house where the disturbance was. These officers could have been in the car or passing through the area to assist.

- Carl

 

[pacific22]

He gave you a "test" in the car? What kind of "test"? And what makes you think you "passed"?

It is also possible that the officer(s) that stopped you was not one of the officers who was in front of the house where the disturbance was. These officers could have been in the car or passing through the area to assist.

- Carl

While sitting in the drivers seat, he gave me the "pen test" where you follow the pen with your eyes until he tells you to stop. The only logical reason I would think of why he would not put this test in the report would be because I passed it, and there needs to be a reason to ask me to step out of the vehicle. However, I had three pieces of gum in my mouth and instead he said there was an odor from my mouth of alcohol and this is why he asked me to step out, according to the police report.

From what I honestly remember: At first, he asked me to follow the pen with my eyes, not my head. This is my first time doing this test, so I wasn't familiar with it. Anyways, I remember following the pen precisely in every direction (up, down, side to side) and feeling good that he may let me go considering I followed it correctly. However, he walked away and when he was near the rear of the vehicle, he yelled "_______ (last name) step out of the vehicle."

Here is another quote from the internet that I found:

An Example of an Unfair Field Sobriety Test (in Our Opinion)

The pen test is particularly nefarious. In most cases, there is no field sobriety test video resulting from this test. Law enforcement agencies don’t videotape the eyes during this test. Therefore, if you are forced to defend yourself at trial, no expert can view the test independently to determine the accuracy of the officer’s assessment. In the view of the experienced DWI/DUI defense lawyers at Stradley, Chernoff & Alford, L.L.P., this test is patently unfair.

Also, to your comment about how do I know if it was the same officer controlling the disturbance. Honestly, I don't. However, this new housing development is set far back in the back of the city where only new development is going on and a few farmers, thats it. The development is very quiet as well and its very uncommon to see a police cruising through there, unless there was a nearby call. Being 400 feet or less from the party, its very unlikely I would have been pulled over by a police officer who was not at that party and in fact just passed right by it. I also believe its very unlikely that the same cop would have been sitting in the squad car while other officers were inside breaking up a fight.

 

[CdwJava]

While sitting in the drivers seat, he gave me the "pen test" where you follow the pen with your eyes until he tells you to stop.

This test is designed to test for the presence of Nystagmus. It is a very telling test when done properly.

The only logical reason I would think of why he would not put this test in the report would be because I passed it

Or, it was inconclusive. Some officers just do it to see if there is really obvious nystagmus present. If there is not, or if they are not certain, they go on to something else.

However, I had three pieces of gum in my mouth and instead he said there was an odor from my mouth of alcohol and this is why he asked me to step out, according to the police report.

So many people think that gum and mouthwash will conceal the odor of alcohol - it does not. All it does is add spearmint to the alcohol odor. Note that alcohol also escapes your pores and not just your mouth; it is a poison that your body tries to break down and force out of your system. Thus, it gives off a very distinctive odor.

From what I honestly remember: At first, he asked me to follow the pen with my eyes, not my head.

That's how it is done. The officer watches for jerkiness of the eyes and other signs. You would not likely notice these motions within your eye.

Here is another quote from the internet that I found:

Keep in mind that the quote was from a defense attorney's web site - OF COURSE they find it unfair. The fact remains that it is an excellent tool and is recognized as one of the standardized FSTs.

In your case it's possibly irrelevant since it was apparently not used by the officer to justify the arrest. If it comes up in court, your attorney can certainly query as to why it was not mentioned in the report.

The development is very quiet as well and its very uncommon to see a police cruising through there, unless there was a nearby call. Being 400 feet or less from the party, its very unlikely I would have been pulled over by a police officer who was not at that party and in fact just passed right by it. I also believe its very unlikely that the same cop would have been sitting in the squad car while other officers were inside breaking up a fight.

If officers are called to the scene of a disturbance, they don't all arrive at the same time. It is possible that the first three or four got there and then canceled other units, or the other officers arrived as people were leaving and just continued to cruise through the area. I would think it VERY unlikely that they had someone sitting in a car waiting to tag departing motorists.

If the officers ordered people into their cars to leave, then you may well have a good defense to the charge. Be sure to bring this up with your attorney.

- Carl

 

[pacific22]

This test is designed to test for the presence of Nystagmus. It is a very telling test when done properly.


Or, it was inconclusive. Some officers just do it to see if there is really obvious nystagmus present. If there is not, or if they are not certain, they go on to something else.


So many people think that gum and mouthwash will conceal the odor of alcohol - it does not. All it does is add spearmint to the alcohol odor. Note that alcohol also escapes your pores and not just your mouth; it is a poison that your body tries to break down and force out of your system. Thus, it gives off a very distinctive odor.


That's how it is done. The officer watches for jerkiness of the eyes and other signs. You would not likely notice these motions within your eye.


Keep in mind that the quote was from a defense attorney's web site - OF COURSE they find it unfair. The fact remains that it is an excellent tool and is recognized as one of the standardized FSTs.

In your case it's possibly irrelevant since it was apparently not used by the officer to justify the arrest. If it comes up in court, your attorney can certainly query as to why it was not mentioned in the report.


If officers are called to the scene of a disturbance, they don't all arrive at the same time. It is possible that the first three or four got there and then canceled other units, or the other officers arrived as people were leaving and just continued to cruise through the area. I would think it VERY unlikely that they had someone sitting in a car waiting to tag departing motorists.

If the officers ordered people into their cars to leave, then you may well have a good defense to the charge. Be sure to bring this up with your attorney.

- Carl

Thank you Carl. Very helpful information. Also, thank you for taking the time to clear this up. It will be very helpful when I'm fighting this and when discussing this with my lawyer.

 

[pacific22]

The DMV has sent my case to commissions. Any know if this could be possibly a bad thing, good thing or? Any further advice?

 

[CdwJava]

The DMV has sent my case to commissions. Any know if this could be possibly a bad thing, good thing or? Any further advice?

I have no idea what it means for a case to be sent to "commissions" by the DMV. The only thing the DMV will do hear is have a hearing officer review the matter to determine if your license should be suspended immediately, or if they should wait until after the results of a trial.

- Carl

 

[tranquility]

From what I honestly remember: At first, he asked me to follow the pen with my eyes, not my head.

That's how it is done. The officer watches for jerkiness of the eyes and other signs. You would not likely notice these motions within your eye.


Quote:
Here is another quote from the internet that I found:

Keep in mind that the quote was from a defense attorney's web site - OF COURSE they find it unfair. The fact remains that it is an excellent tool and is recognized as one of the standardized FSTs.

Obviously, to have a standardized test, it has to be standard. Nystagmus is not useful at all when done to a person sitting in his car with his head turned. The turning of the head would change the results and would not be useful in court.