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Dirty DUI/Dirty Cops

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James W Harwood
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“One of the most deplorable legal practices I have ever heard of.”  This was how a senior deputy district attorney in Contra Costa County described the circumstances surrounding one east bay DUI arrest.  Unfortunately, the circumstances of this arrest were repeated across the east bay, and all instigated by one dirty former cop.

In one incident, according to the San Francisco Chronicle, in 2008, an east bay man going through a divorce met a woman on an online dating service.  After agreeing to a date, they met at a Concord restaurant.  At the restaurant, the young woman continuously flirted with the man while they drank shots of booze.  After awhile, a second attractive and flirtatious woman showed, and the first woman invited the man to join them in her hot tub.  Unfortunately, the 46-year-old divorcee couldn’t resist the temptation of climbing into a hot tub with two hot and horny young ladies, and decided to drive.  Minutes after leaving the restaurant, he was pulled over by Concord Police and arrested for DUI. 

Unknown to the fellow in this story, he was set up by a private investigator hired by his ex-wife’s divorce attorney.  The attorney hired Christopher Butler, a former Antioch police officer, who arranged for the young ladies to meet with the dupe.  Mr. Butler then arranged for his friends in law enforcement to pull the man over.  The setup served the ends of the ex-wife’s attorney to influence a family court judge in child custody decisions. 

A Contra Costa County deputy sheriff admitted to working with Butler to make “dirty DUI” arrests in order to “dirty” the target for future court dates.  According to felony charges filed against the deputy, he accepted compensation in at least one such incident.  It is unclear whether that deputy was involved in the arrest above.  However, the facts almost exactly fit with other DUI arrests by the deputy.

In another Butler Dirty DUI case, Clayton Police Chief Dan Lawrence admitted to being troubled that his department may have been used for these ends, but put the blame on the ex-husband, and felt that the goals of justice were satisfied.

These Dirty DUI cases raise a number of disturbing issues.  Most disturbing was the active participation by law enforcement in at least some of these set-ups.  It is a crime (bribery) for a police officer to accept anything of value to influence any action in his public capacity.  When a police officer begins working for a private interest he stops working for the interests of the public.  All of that officer’s testimony in that case becomes biased, and based on profit motive. 

Even if no bribes are received by law enforcement, if officers were aware of the set up and participated in the arrest, they become complicit in the fraud.  If it can be shown that Mr. Butler was an agent of law enforcement, then the entrapment defense may apply to this case.  Someone is a government agent when the government directs and supervises his activities and is aware of those activities.  In California, the test for entrapment is:  Was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense?” 

Here, the inducement was an opportunity for a middle-aged divorcee to engage in naked hot tub high-jinx with two beautiful young women.  Few would doubt that this inducement would temp even the strongest willed man.  Clearly, given the close relationship between the police and Mr. Butler, if filed, these cases should be dismissed on entrapment grounds. 

DUI cases like these may also be dismissed on grounds of “Outrageous Police Conduct.”  This involves police misconduct inducing an otherwise criminal act.  The factors considered when determining if outrageous police conduct constitutes grounds for dismissal are:  (1) Whether the police manufactured a crime that otherwise would not have occurred; (2) Whether the police themselves engaged in criminal or improper conduct repugnant to the sense of justice; (3) Whether the police engaged in a persistent effort to overcome the defendant’s reluctance to commit the crime; and (4) Whether the police had an overriding desire for a conviction.  Obviously, the circumstances of the Dirty DUI cases are outrageous.  What would probably be determinative in each individual case would be the level of police involvement in the setups.  When the deputy knew about the setup and coordinated with the P.I., possibly for money, the level of police involvement should be easy.  If sufficient involvement is found, the case would be dismissed on constitutional due process grounds. 

There are lessons to be taken from these Dirty DUI cases.  It would be incorrect to automatically assume that corrupt dealings with private investigators, like in these cases, are common.  Most police officers conduct their duties with integrity.  However, it is important to find out how far this scandal went, and to be vigilant to other cases of corruption in other police departments. 

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