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What is duty of a police officer if he sees you leaving a bar…

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What is duty of a...
What is duty of a police officer if he sees you leaving a bar at closing, gives you a ticket for public urination in parking lot of bar, observes you are intoxicated and your keys in hand? Does he have a duty to STOP you from driving or can he wait until you drive three blocks and then stop you?
Submitted: 8 years ago.Category: Legal
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Answered in 3 hours by:
6/17/2010
Lawyer: Jonathan Leventhal, Attorney replied 8 years ago
Jonathan Leventhal
Category: Legal
Satisfied Customers: 250
Experience: Member State Bar of California
Verified

He is permitted to watch you commit a crime and then arrest you for it. The officer could be held liable in the event the person driving the car injured somebody and the officer could have prevented it.

 

 

I hoped I have answered your question to your satisfaction.

 

Jonathan Leventhal, Esq.

 

This is information only, NOT legal advice. No Attorney-client relationship has been created. Please consult an Attorney in your state for legal advice regarding this matter.

 

Please press the "accept" button so I may be credited and paid for my time when I have answered your question. I am available to answer follow-up questions or to clarify this answer. Positive feedback or a bonus is always appreciated. Thank you very much.

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Customer reply replied 8 years ago

I was reading that it is true that a police officer has NO duty to protect but for TWO CIRCUMSTANCES, one is where a special relationship exists.

 

I was thinking that since he stopped my son for urinating in public, in the parking lot of a bar at closing time, with his keys in his hand, the officer had the opportunity to observe his demeanor, any odor of alcohol, etc.

 

The officer created the 'special relationship' by stopping him and giving him a ticket. Unlike the many others who were leaving the bar at the same time as he was, because the officer had not established a relationship with them. Therefore, this is an exception to the 'no duty to protect' rule, and it now falls within the state-created danger exception, as it was reasonably foreseeable that he was about to get behind the wheel of the car and drive.

 

My thought was he escalated his duty to my son (not the general public) because he put himself in that position. And because of this exception, the officer had a duty to arrest for being intoxicated in public.

 

I read it to say that the officer does NOT have a duty to protect the general public, but the actor, and that the circumstances described DO fall within one of the two exceptions on the duty to protect.

 

Additionally, allowing an intoxicated person to drive, when you are sober, is a violation under NJSA 39:4-50(a). That this is a strict liability statute and it's unimportant whether the sober person was positive that the actor was drunk, and it goes to the state of mind of the person allowing the other to drive drunk.

 

Could these possibly be two valid arguments that can be used at the time of trial ? For if the officer did have a duty and failed in that duty, any subsequent arrest can't be admitted.

 

I'd appreciate your help since it seems pretty complicated to me, but I want to see if I understand correctly what's being said and if I could use it as an argument at trial.

 

Thank you,

Michele VIcaro

Lawyer: Jonathan Leventhal, Attorney replied 8 years ago

No I am sorry they are not. The special relationship and duty apply to private parties. Special relationship refers husband to wife, parents to children.

 

Police officers are obligated to protect the public. The officer may not have known that the person was intoxicated until he witnessed the person driving.

 

But this has absolutely nothing to do with the fact that the person was driving intoxicated. it is not a defense to say, "well I was in fact drunk but another person should have stopped me".

 

A defense to drunk driving is "I was not intoxicated"!

 

I hoped I have answered your question to your satisfaction.

Jonathan Leventhal, Esq.

This is information only, NOT legal advice. No Attorney-client relationship has been created. Please consult an Attorney in your state for legal advice regarding this matter.

Please press the "accept" button so I may be credited and paid for my time when I have answered your question. I am available to answer follow-up questions or to clarify this answer. Positive feedback or a bonus is always appreciated. Thank you very much.
NOTE: Sometimes we receive your question before we receive your additional "optional information". If my answer does not appear to consider your optional information, please let me know as I was probably not able to view it when your question was first received.

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