The Police Made Me Do It

When utilizing an entrapment defense the defendant must show that he committed a crime at the urging of a government official. North Carolina allows the defense of entrapment in the context of driving while impaired. State v. Redmon, 596 S.E.2d 854, 164 N.C. App. 658 (2004).

Elements of Entrapment Defense

The entrapment defense consists of two elements:

  1. Acts of persuasion, trickery, or fraud carried out by law enforcement or their agents to induce a defendant to commit a crime; and
  2. The criminal design originated in the minds of the government officials, rather than with the innocent defendant, such that the crime is the product of the creative activity of the law enforcement authorities.

State v. Walker, 295 N.C. 510, 513, 246 S.E.2d 748, 749-50 (1978). The North Carolina Pattern Jury Instructions break these two elements into three but they are substantially the same elements.

Facts Supporting Entrapment on DWI Case

In Redmon, police received an anonymous call about a person sleeping in a truck in an apartment complex parking lot. When the deputy responded, he found Mr. Redmon asleep in the driver’s seat with the car turned off. Evidence revealed that Mr. Redmon had been drinking with a friend at a bar, who drove the defendant from the bar to the apartment complex where the defendant’s truck was parked. The evidence indicated Mr. Redmon was asleep in his truck waiting for his girlfriend to come home so he could go inside with her, and that he did not intend on driving anywhere that night.

After the deputy woke Mr. Redmon up by opening the driver’s side door, Mr. Redmon told the deputy he had been drinking earlier in the night and was waiting on his girlfriend to get home. After speaking with the deputy, Redmon testified that he was told by the deputy that since he was not a resident of the apartment complex, he needed to leave, and was told by the deputy to “move along.”

The deputy drove out of the apartment complex and parked his vehicle nearby for patrol. Within minutes the deputy saw the truck he believed to be the defendant’s and initiated a traffic stop.

The two key facts in a DWI case that would be helpful to obtaining an instruction on entrapment are:

  1. The officer told, explicitly or implicitly, defendant to drive; and
  2. The defendant did not plan on driving prior to the instruction to do so.

Is the Existence of Entrapment a Question of Fact or Law?

The issue of whether or not a defendant was entrapped is generally a question of fact to be resolved by the jury. State v. Collins, 160 N.C.App. 310, 320, 585 S.E.2d 481, 489 (2003), aff’d 358 N.C. 135, 591 S.E.2d 518 (2004). However, at times, the evidence can be so overwhelming as to constitute entrapment as a matter of law. State v. Stanley, 288 N.C. 19 (1975).

Burden of Proving the Entrapment Defense

The defendant must prove the elements of the entrapment defense to the satisfaction of the jury. While the burden of the defense to the jury’s satisfaction lies with the defendant, the State continues to bear the burden of proving the defendant’s guilt beyond reasonable doubt.

Notice to the State of Entrapment Defense

If the original jurisdiction for the impaired driving charge is with Superior Court (ex. Habitual Driving While Impaired), then notice of the entrapment defense, as well as specific information as to the nature and extent of the defense, may be required pursuant to N.C.G.S. 15A-905(c)(1).

If the original jurisdiction for the impaired driving charge is with District Court, then notice to the State of the defense is not required.

Jury Instruction for Entrapment Defense

The pattern jury instruction for the defense of entrapment currently reads as follows:

The defendant has raised the defense of entrapment. Entrapment occurs when a person acting on behalf of a governmental agency induces the defendant to commit a crime not contemplated by the defendant for the purpose of instituting a criminal charge against him. Entrapment is a complete defense to the crime charged.

The burden of proving entrapment is upon the defendant. However, the defendant is not required to prove entrapment beyond a reasonable doubt, but only to your satisfaction. For you to find the defendant was entrapped, you must be satisfied of three things:

First, that the criminal intent to [Drive While Impaired] did not originate in the mind of the defendant.

Second, that the defendant was induced by another person to act. Merely providing an opportunity to [Drive While Impaired] by a person would not be sufficient inducement. It must appear that that person used persuasion or trickery to cause the defendant to commit this crime which he was not otherwise willing to do.

And Third, that this person acted on behalf of a governmental agency.

If you are satisfied from the evidence that the criminal intent did not originate in the mind of the defendant and that another person induced the defendant by persuasion or trickery to [Drive While Impaired], which he was not otherwise willing to do, and that person acted on behalf of a governmental agency, then you must return a verdict of not guilty.

N.C.P.I. Crim. 309.10.


In the right factual context, a person charged with DWI can utilize the entrapment defense.