Several times a year I am asked if entrapment is a defense to a DUI in Georgia. Entrapment is a defense to any crime, however, when people ask about entrapment insofar as DUI is concerned, most people misunderstand the law.
Usually, the question is in the context of when a police officer makes an arrest at a DUI Checkpoint or when the police park near a bar or strip club.
Entrapment, O.C.G.A 16-3-25, occurs when a government official “induces or solicits” a person to commit a crime. The governmental official must provide “the idea and the intention” to commit the crime. The governmental official must, essentially, ‘induce a person to commit an act they would not have otherwise done.'
As a result, police waiting at a DUI Checkpoint or near an establishment that serves alcohol is not entrapment.
DUI Roadblocks are viewed by many as "a trap," but the fact that officers are pulling over automobiles does not cause a person to drive while impaired.
When officers lay in wait near bars and strip clubs, the issue of entrapment is potentially more complicated.
It would be fair to ask why police officers do not wait in the parking lot of an establishment and instruct impaired people to not get behind the wheel. The police could, in fact, prevent the crime of DUI. They could even save more lives than waiting for impaired drivers to leave. Surely more people could be stopped, making the roads safer.
That being said, the police do not have a legal obligation to prevent crime. It would seem, however, they would have a moral obligation to prevent drunk driving, rather than to stop someone in the act. For every person pulled over, several more could be stopped before they drove.
When it comes to the police, preventing crime gets in the way of making arrests. It is a shame.
The only way a person can use entrapment as a defense to a Georgia DUI arrest is if the police forced a person to drive while already knowing that he or she was intoxicated.