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State v. Fogarty

Decided: June 8, 1992.


On certification to the Superior Court, Appellate Division.

Garibaldi, Wilentz, Handler, O'Hern, Stein, Clifford, Pollock


The opinion of the court was delivered by


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.


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, N.J. (1991), and now reverse the Appellate Division judgment and reinstate the judgment of the municipal court.


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 (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 (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 (1990) (no right to jury trial in prosecution for third DWI offense); State v. Macuk, 57 N.J. 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, 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 (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 (1984).

Objective entrapment, on the other hand, does not consider the preDisposition of the defendant. State v. Talbot, 71 N.J. 160, 168 (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 (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. 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.]

We have recently reaffirmed that the New Jersey Constitution embodies an entrapment defense as a matter of due process. State v. Johnson, N.J...., (slip at 18) (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.


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 (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 (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, ...

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