State v. Fogarty

607 A.2d 624, 128 N.J. 59, 1992 N.J. LEXIS 379

• Court: Supreme Court of New Jersey
• Decided: June 8, 1992
• Status: Published

Opinions

The opinion of the Court was delivered by

GARIBALDI, J.

This appeal concerns the validity of the novel defense of quasi-entrapment by a defendant charged with driving while intoxicated (DWI), a violation of N.J.S.A. 39:4-50.

I

Defendant, Jeffrey D. Fogarty, attended a wedding reception at a restaurant in Haledon Borough. At approximately 1:50 a.m., defendant and several other wedding guests left the reception and entered the restaurant parking lot. Defendant was intoxicated when he left the reception. According to defendant a friend had previously agreed to drive him home after the reception. Defendant had arranged for Robert Leonard and his brother Jeffrey Leonard to drive his truck home for him. However, Robert and Jeffrey Leonard, already in the parking lot, began arguing over who would drive defendant's truck. The Leonard brothers’ argument soon escalated into a brawl.

A Haledon Police officer who noticed the altercation immediately radioed for backup assistance. Approximately six officers reported to the parking lot to control the crowd that had gathered around the fight. The police used physical force to restrain Robert Leonard as he resisted arrest.

Defendant did not participate in the fight. However, on observing how the police were treating Robert Leonard, defendant told the arresting officers, whom he could not identify by name, to treat Leonard less roughly. One unnamed officer ordered defendant to leave the parking lot. Defendant ignored that order.

Seeing that defendant had not left the scene of the altercation, the unnamed officer repeated his order. According to defendant, the officer was carrying a nightstick in his hand and directed defendant to “get in the truck and get out of here or you’re going too.” Defendant understood the order to mean that he would be taken to the police station if he did not comply. The officer allegedly walked defendant over to his truck. Defendant did not inform the officer that he had been drinking earlier that evening.

The truck’s engine was already running. Defendant entered the truck, put it into reverse, and proceeded to back into a parked police car.

Defendant was arrested and charged with DWI. The police administered two breathalyzer tests to defendant. Both tests revealed a .12% blood-alcohol level, a reading above the .10% level defined as intoxication.

At defendant’s municipal court trial, he attempted to establish a justification defense to the DWI charges. On the basis of the breathalyzer tests, the municipal court found defendant guilty. Defendant was then tried de novo before the Law Division. The Law Division found defendant guilty, reasoning that even if the entrapment defense were available, defendant had failed to establish it by a preponderance of evidence.

On appeal, defendant based his claim that he was not guilty of DWI on the theory that he would not have driven but for the order of the police. Agreeing with defendant, the Appellate Division reversed the conviction and held that on remand the municipal court should exonerate defendant under a theory of “quasi-entrapment” if he could prove by a preponderance of the evidence that he would not have driven his truck but for the police order. We granted certification, 126 N.J. 324, 598 A 2d 883 (1991), and now reverse the Appellate Division judgment and reinstate the judgment of the municipal court.

II

The Appellate Division correctly recognized that traditional entrapment was not available as a defense in defendant’s DWI case. The New Jersey Code of Criminal Justice (Code) provides that entrapment constitutes an affirmative defense to criminal offenses. N.J.S.A. 2C:2-2. However, we have uniformly recognized that motor vehicle violations, including violations of the DWI statute, are not offenses under New Jersey’s Criminal Code. State v. Hammond, 118 N.J. 306, 571 A.2d 942 (1990). Thus, Code defenses such as entrapment do not apply to the motor vehicle offense of DWI. See, e.g., Hammond, supra, 118 N.J. at 318, 571 A.2d 942 (involuntary intoxication is not a defense to DWI). Moreover, due to the comparative lack of severity of penalties for DWI, certain constitutional rights do not apply to DWI proceedings. See, e.g., State v. Hamm, 121 N.J. 109, 577 A.2d 1259 (1990) (no right to jury trial in prosecution for third DWI offense); State v. Macuk, 57 N.J. 1, 268 A.2d 1 (1970) (Miranda warnings not required before breathalyzer test).

Nonetheless, a defendant charged with a motor vehicle offense does not forfeit all constitutional and common-law defenses. See State v. DeLuca, 108 N.J. 98, 527 A.2d 1355, cert. denied, 484 U.S. 944, 108 S.Ct. 331, 98 L.Ed.2d 358 (1987) (prohibition against double jeopardy applies to DWI cases); State v. Tropea, 78 N.J. 309, 316, 394 A.2d 355 (1978) (in motor-vehicle offenses considerations of fundamental fairness bar retrial because of insufficiency of evidence).

At common law, entrapment existed in two forms: subjective and objective. Subjective entrapment arises when police implant a criminal plan in the mind of an innocent person who otherwise would not have committed the crime so that they may prosecute that person. State v. Rockholt, 96 N.J. 570, 576, 476 A.2d 1236 (1984).

Objective entrapment, on the other hand, does not consider the predisposition of the defendant. State v. Talbot, 71 N.J. 160, 168, 364 A.2d 9 (1976). Rather, objective entrapment focuses on the conduct of the police. It exists when the police conduct causes an average law-abiding citizen to commit the crime, or when the conduct is so egregious as to impugn the integrity of the court that permits a conviction. Ibid.; see also State v. Molnar, 81 N.J. 475, 484, 410 A.2d 37 (1986).

The Code combined the elements of subjective and objective entrapment into one test. The Code test requires the court to analyze how the defendant's predisposition and the police conduct interrelate and to ask which one directly caused the commission of the crime. See State v. Rockholt, supra, 96 N.J. at 577, 476 A.2d 1236. We recognize, however, that even after the Code,

there is still a constitutional due process underpinning to be observed. There may be situations in which the conduct of law enforcement officers is so egregious that the results of that conduct must be set aside as a matter of due process although the subjective element of the Code entrapment defense is not satisfied. [Id. at 580, 476 A.2d 1236.]

We have recently reaffirmed that the New Jersey Constitution embodies an entrapment defense as a matter of due process. State v. Johnson, 127 N.J. 458, 473, 606 A.2d 315, 322 (1992). “The defense arises when conduct of government is patently wrongful in that it constitutes an abuse of lawful power, perverts the proper role of government, and offends principles of fundamental fairness.” Ibid.

No form of entrapment applies to this case. The police did not plant a criminal plan in defendant’s mind and did not engage in any sort of impermissible conduct. The police officer did not know defendant was intoxicated. Moreover, when he ordered defendant to leave, the officer was legitimately exercising his law-enforcement authority in an attempt to control a rapidly escalating incident precipitated by the Leonard brothers’ fight. The police did not coerce defendant into driving his vehicle through use or threats of violence. The entrapment defense is therefore unavailable to defendant.

Ill

Although recognizing that defendant could not assert entrapment as a defense, the Appellate Division nonetheless held, “on the basis of considerations of fundamental fairness akin to those which underlie the entrapment defense,” that defendant could rely on a “quasi-entrapment” defense if he could show that but for the police order, he would not have driven his truck.

The Appellate Division apparently derived its quasi-entrapment defense from the objective-entrapment defense. In evaluating objective-entrapment claims, courts consider whether the police misconduct was so egregious as to violate a defendant’s rights to due process and fundamental fairness. State v. Gibbons, 105 N.J. 67, 74, 519 A.2d 350 (1987). In order for the defendant to assert successfully an objective-entrapment defense, police must engage in law-enforcement methods that do not “measure up to commonly accepted standards of decency and conduct to which the government must adhere.” State v. Talbot, 71 N.J. 160, 168, 364 A.2d 9 (1976).

No facts in this case even suggest that the police engaged in egregious conduct. The police did not know that defendant was intoxicated. In fact, defense counsel, in his summation before the municipal court, acknowledged that the police conduct was reasonable.

Moreover, the objective-entrapment defense expresses “a legislative policy of discouraging improper police inducements to criminal conduct.” Rockholt, supra, 96 N.J. at 583, 476 A.2d 1236. The Appellate Division’s weaker “but for” test, in not considering the intent behind a police officer’s actions, fails to serve the deterrent purpose behind the defense.

New Jersey has an overriding goal to rid the roads of drunk drivers. The duty rests on the operator not to drink and drive. A person who finds himself or herself in defendant’s situation should inform police that he or she is intoxicated. Such a person should also seek an alternative to violating the law. Defendant did not attempt to avail himself of any noncriminal alternative. Instead he chose to drive himself, knowing that he had consumed several alcoholic beverages.

Defendant submits that he interpreted the officer’s order to mean that he had no alternative to leaving in his truck. Defendant may have subjectively believed that to be true but his belief is irrelevant. Indeed, we question whether any quasi-entrapment defense that relies in part or entirely on defendant’s subjective intent can ever be a defense to a DWI charge. The primary purpose of N.J.S.A. 39:4-50 “is to curb the senseless havoc and destruction caused by intoxicated drivers.” State v. Tischio, 107 N.J. 504, 512, 527 A.2d 388 (1987), appeal dismissed, 484 U.S. 1038, 108 S.Ct. 768, 98 L.Ed.2d 855 (1988). Toward that end, the Legislature has sought “to discourage long trials complicated by pretextual defenses.” Hammond, supra, 118 N.J. at 317, 571 A.2d 942. DWI is an absolute liability offense requiring no culpable mental state. The State need not demonstrate a defendant’s culpable state of mind to prove a violation of N.J.S.A. 39:4-50. Hammond, supra, 118 N.J. at 314-15, 571 A.2d 942. Defendant drove his car when his blood-alcohol level was .12%. The Legislature has made driving with a .10% blood-alcohol level or greater a per se offense. Ibid. Thus, because defendant’s blood-alcohol level was .12%, he was per se guilty of DWI.

Furthermore, such a subjective standard as embodied in the Appellate Division's “but for” test does not work in DWI cases, in which the risk of impaired judgment as a result of intoxication is high. Under a subjective standard, the more intoxicated the driver is, the more “reasonable” his or her choosing to drive would be. See Hammond, supra, 118 N.J. at 316, 571 A. 2d 942 (“The application of the involuntary intoxication defense would be anomalous: the more drunk the driver is, the less culpable he or she would be.”). That approach not only makes no sense but also is contrary to our cases mandating the use of an objective test with respect to “constitutional” entrapment. See, e.g., Rockholt, supra, 96 N.J. at 581, 476 A.2d 1236 (“The defendant would not satisfy this requirement if the evidence demonstrated that he was unusually susceptible to inducement and that an ordinary person would not have succumbed to the type of inducement to which he had succumbed.”).

A clear legislative intent and a strong legislative policy exist to discourage long trials complicated by pretextual defenses. Hammond, supra, 118 N.J. at 317, 571 A.2d 942. Defendant seeks to avail himself of a subjective pretextual defense in this case. He does not contend that the police officer ordered him to drive drunk; he asserts only that he believed that some unidentified police officer told him to leave. That kind of defense has every potential for being pretextual and would “impede the efficient and successful prosecution of those who drink and drive.” State v. Schreiber, 122 N.J. 579, 587, 585 A.2d 945 (1991).

In our DWI decisions we attempt to eliminate every possibility of pretextual defenses. We have done so not only because of any doubts about the veracity of the factual defense offered, but also because of the potential for pretext. For example, in Hammond, supra, 118 N.J. 306, 571 A.2d 942, we rejected a defendant’s attempt to assert involuntary intoxication as a defense to DWI. Hammond had consumed fruit juice without knowing that it contained alcohol. The Court pointed out that the defense of involuntary intoxication had “every potential for being pretextual.” Id. at 318, 571 A.2d 942.

In this case the risk of pretext is even greater. The scene is all too common: a brawl in a parking lot outside a bar, a restaurant, or a sports stadium, or indeed at any gathering where a number of people are present. The police arrive and decide that public safety requires that they immediately disperse the crowd. The police do not have time to assess the risk that some ordered to leave may be drunk. Moreover, if the police had to administer sobriety tests to everyone at those events before dispersing them, their law-enforcement efforts would suffer.

After a police order to disperse, those who had intended to leave anyway, those without fear of arrest or of physical assault, those without any reason to fail to tell the police that they are drunk, drive away intoxicated. Obviously, if the law were to permit those people to offer as a defense that they drove only because they reasonably feared that telling the police that they were drunk might lead to arrest, the invitation to offer a pretext would be clear.

But even if the officer accompanies his or her order with a threat of arrest to anyone who fails to leave immediately— leaving no doubt as to its fulfillment even if the delay is as short as is necessary to say “I am drunk” — that circumstance cannot constitute a defense. For if it did, the possibility of pretext where no such threat was made is clear; indeed, the possibility exists even if the officer admits making the threat.

Drinking is legal, and for those who carefully arrange for a designated driver when they drink, the possible results implicit in this case can be harsh. The risk of that harshness must be balanced against the risk of damage caused by pretextual defenses — damage to the enforcement of New Jersey’s drunk-driving laws. As in prior cases, we conclude that the balance weighs in favor of consistent and strict enforcement. To sanction defendant’s quasi-entrapment defense would “disserve broader policy goals [to combat drunk driving].” See Hammond, supra, 118 N.J. at 318, 571 A.2d 942.

IV

Defendant argues that he drove while intoxicated because the police officer essentially coerced him to do so. Putting aside the Appellate Division’s label of quasi-entrapment, we perceive that what defendant really alleges is the defense of duress.

Duress consists in forcing a person to act against his or her own will. D’Aloia v. Summit, 89 N.J.L. 154, 155, 97 A. 722 (Sup.Ct.1916). It does not exist when a person can choose whether he or she will perform the act said to have been done under duress. Ibid.

Like entrapment, the Code defense of duress is not available to a DWI defendant. See discussion supra at 64, 607 A.2d at 626. However, common-law defenses may be available as long as they have not been precluded by the statute defining the offense. See State v. Tate, 102 N.J. 64, 74, 505 A.2d 941 (1986) (common-law defense available only when Legislature has not foreseen circumstances encountered by defendant). However, whether a common-law defense does remain is frequently a difficult issue. Id. at 73, 76, 505 A.2d 941.

Even if we were to resort to the common law, however, defendant has failed to establish that he acted under duress in this case. Duress is an appropriate defense only when the defendant is subject to coercion through threats or use of unlawful force that a person of reasonable firmness would be unable to resist. State v. Toscano, 74 N.J. 421, 442, 378 A.2d 755 (1977). For example, in Browning v. State, 31 Ala.App. 137, 13 So.2d 54 (1943), police chased and shot at the defendant in an attempt unlawfully to arrest him. The defendant testified that he feared for his life and therefore was compelled to speed. Id. 13 So.2d at 56. The court held that whether the defendant was acting under duress when he engaged in reckless driving was a question for the jury.

The facts of Browning are in no way similar to those of the present case. Fogarty was not subject to threats or use of unlawful force. Rather, in ordering defendant to leave the scene of the brawl, the police officer in this case was exercising his legitimate law-enforcement authority. Moreover, that defendant may have feared being arrested himself does not establish duress.

A case more like the present one is State v. Falco, 60 N.J. 570, 292 A.2d 13 (1972). In Falco, this Court rejected duress as a defense when defendant, a police officer, filed a report that misstated that he had not been present at a barroom brawl when in fact he had been. Id. at 586-87, 292 A.2d 13. The defendant’s claim of duress rested on the fact that his job as a police officer required him to file the report. The court emphasized that because no one had ordered the defendant to file a false report, but merely to file a report, there had been no duress. Id. at 586, 292 A.2d 13.

Similarly, in the present case, no one ordered defendant to get drunk and no one ordered defendant to drive drunk. The police did not coerce defendant into driving his vehicle through use or threats of violence. The police officer merely ordered defendant to get in his truck and leave the scene of the fight. That does not constitute duress.

V

Nor is defendant’s case similar to United States Supreme Court cases that prohibit the State from prosecuting defendants for acts committed pursuant to permission granted by a government official. See Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed. 2d 1344 (1959), and Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.M 487 (1965). In Raley, the State prosecuted the defendants for contempt after they had invoked the privilege against self-incrimination. The defendants had invoked the privilege because State officials had specifically told them that they could. Similarly, in Cox, the State prosecuted the defendant for demonstrating near a courthouse after a State official had given permission to demonstrate across the street from the courthouse.

In both cases, State officials had permitted the defendants to undertake the specific act for which the State prosecuted them. In contrast, the police officer in the present case did not give defendant permission to drive drunk.

In addition, neither Raley nor Cox involved situations in which a defendant could have corrected a mistaken assumption on the part of the State official. The defendants in those cases were just as unaware that their actions were illegal as were the State officials who had permitted them to undertake those actions. Fogarty, on the other hand, did know that he had consumed several alcoholic beverages. Unlike the defendants in Raley and in Cox, Fogarty had the option of informing the police that he was intoxicated. However, he failed to exercise that option. Because of Fogarty's silence, the police did not know he was intoxicated. Fogarty’s silence thus led to his driving while intoxicated and his subsequent arrest.

A case more similar to the present one is Adams v. State, 585 So.2d 161 (Ala.1991). In Adams, a police officer ordered the defendant to “move along” after he observed the defendant lying across the front seat of her car. The same police officer arrested the defendant for DWI a short time after having ordered her to move. The defendant was ultimately convicted of DWI on the basis of her having failed field sobriety tests.

The Alabama Court of Criminal Appeals reversed the defendant’s conviction, holding that the police officer had entrapped her. Adams v. State, 585 So. defendant’s argument that she “should not be held liable for a traffic offense which resulted directly from her obeyance of the order and directions of a state trooper.” Id. at 158.

The Alabama Supreme Court reversed, finding “no evidence of governmental inducement by the state trooper in instructing [the defendant] to move along.” 585 So. 2d 161, 163 (1991). The court emphasized that the evidence was uncontroverted that the trooper did not know that the defendant was intoxicated when he ordered her to move her car. Ibid. The court therefore reinstated the defendant’s DWI conviction.

Identical logic applies to the case before us today. No one has questioned the reasonableness of the police conduct. Moreover, no one disputes that the police did not know that defendant was intoxicated before he drove. We conclude that the lack of any police misconduct precludes any entrapment-based defense. As explained by one of the dissenting lower court judges in Adams, permitting the defendant in that case to escape conviction despite her failure to have informed the police officer of her intoxication was unfair.

Just because the officer failed to detect appellant’s condition does not lessen her culpability. She violated the law. The responsibility is hers, but the effect of the majority opinion [of the intermediate court] places it on the officer. Such result is absurd. [585 5o.2d at 161 (Patterson, J., dissenting).]

The facts of the present case highlight this absurdity even more clearly than those of Adams. In this case, the police were involved in breaking up a fight and in subsequently subduing a man resisting arrest. The police officers’ attention was not and should not have been focused on defendant. The police’s sole concern was to restore order and to that end have defendant leave the scene. Perhaps the entire drunk-driving incident could have been averted if defendant had told the police that he was intoxicated. However, that he did not bring his state of intoxication to the attention of the police officer or that the police officer did not otherwise notice his condition cannot absolve defendant of his DWI conviction. Defendant is guilty of drunk driving because he failed to refrain from getting behind the wheel while he was intoxicated.

Moreover, the facts here were not so unusual as to warrant special treatment. To allow the defendant to assert quasi-entrapment as a defense to a charge of driving while intoxicated would “surely frustrate the efficient and vigorous enforcement of our laws against driving while intoxicated.” See Hammond, supra, 118 N.J. at 318, 571 A. 2d 942.

VI

Because defendant has failed to establish any defence of entrapment, quasi-entrapment, or duress to his DWI prosecution, we reverse the Appellate Division judgment and reinstate the judgment of conviction.