dissenting.
A conviction for driving while intoxicated (DWI) ordinarily is not an occasion for hand-wringing about issues of fundamental fairness and due process. The cases are usually cut and dried: a defendant who had been driving a motor vehicle is found to have a blood-alcohol reading, based on a breathalyzer test, of .10 or above. Our decisions confirm this Court’s determination to enforce strictly the strong legislative policy to impose swift and certain punishment on those who would drive a motor vehicle while under the influence of alcoholic beverages. See State v. Hammond, 118 N.J. 306, 571 A.2d 942 (1990); State v. Tischio, 107 N.J. 504, 527 A.2d 388 (1987), appeal dismissed, 484 U.S. 1038, 108 S.Ct. 768, 98 L.Ed.2d 855 (1988).
But once in a great while a DWI case comes along that presents facts so bizarre and remote from the public policy underlying the law that even a Court as committed as this one to the strict enforcement of the drunk-driving statutes can pause to make certain that no injustice has been done. The comedy of errors that placed defendant, Fogarty, behind the wheel of his truck — notwithstanding his carefully having ar*75ranged for friends to drive him to and from the wedding he attended on the night in question — bears little relation to the irresponsible conduct courts typically encounter in DWI cases. Unfortunately for Fogarty, the unfamiliar defense suggested by the unusual facts of his case — quasi-entrapment, or estoppel — is primarily relied on in out-of-state cases and better explained by commentators than by the courts that have invoked it. Because the majority opinion does not correctly identify the elements of the estoppel defense, it mistakenly concludes that that defense, as a matter of law, cannot apply to this case. I disagree and would remand for a new trial to resolve the factual issues that determine whether the estoppel defense is available to Fogarty.
I
On April 15, 1989, Fogarty attended a wedding with several friends at the Brownstone House in Haledon. He had arrived at the wedding as a passenger in his Chevrolet Blazer. Fogarty testified that his friend, Jeff Leonard, drove the Blazer because he knew the route to the wedding. Fogarty did not plan to drive at all that evening and had made arrangements to be driven home by another friend, Jim Davis. Either Jeff Leonard or his brother, Robert, was to drive the Blazer after the wedding to a post-wedding party that Fogarty did not plan to attend.
Fogarty, Davis, and Davis’s wife were leaving the wedding at approximately 2:00 a.m., when they noticed other guests engaged in a scuffle in the Brownstone House parking lot. Fogarty walked towards the fight, which was in process near his Blazer in the center of the lot. According to Fogarty, the engine of the Blazer was running. Jim Davis testified that yet another Leonard brother, Mike, had started the engine.
The “scuffle” in the parking lot (the Law Division stated that it may have been a “semi-riot”) began when Robert and Jeff Leonard, both approximately six-feet, two-inches tall and weigh*76ing 210 pounds, started arguing and then fighting over who would drive Fogarty’s Blazer. Officer DeKorte, who was the only witness for the State, saw the fight and radioed for backup assistance. Jeff Leonard left, and Robert started arguing with several of his friends and DeKorte. It took DeKorte and five or six other officers (some of whom were from nearby Paterson) five to ten minutes to restrain Robert Leonard. During that time, Leonard was handcuffed and his face was pushed into the ground. While Leonard was in that position, an officer struck him with a nightstick. Defense counsel stated at trial that Leonard was charged with and subsequently pled guilty to resisting arrest.
Defendant claims that he urged the officer who had hit Robert Leonard with a nightstick not to be so rough because Leonard already had been handcuffed. The officer, who did not testify at trial and whose identity remains unknown, responded by ordering defendant to leave. That order apparently was part of a general attempt by the police to disperse the crowd. Jim Davis also was ordered to leave under threat of arrest. Defendant did not immediately obey the officer's command. Defendant described the officer as “a big guy, bigger than Bob.” Fogarty testified that he told the officer that he was the owner of the Blazer. According to defendant, the officer then approached him with “a black stick in his hand, the same one that he was hitting Bob with,” and said, “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.
Defendant testified that following the second order the officer walked him over to the Blazer, carrying his nightstick. Defendant did not inform the officer that he had been drinking. Defendant climbed into the Blazer, shifted into reverse, and unwittingly backed into DeKorte’s squad car, which was located directly behind the truck. DeKorte saw defendant exit the vehicle and behave erratically. He detected the smell of alcohol *77on defendant’s breath. He arrested defendant and drove him to police headquarters. The breathalyzer tests subsequently administered yielded identical results of a blood-alcohol concentration of .12 percent.
Fogarty was charged with violating N.J.S.A. 39:4-50(a). At the municipal court hearing, Fogarty testified that he had had no intention of driving that evening, and had moved the truck only because he had believed that under the circumstances he had no reasonable alternative. His counsel argued that the officer’s express order to Fogarty to move his truck constituted, under the unique circumstances, a defense to the DWI charge. The court, after making various statements manifesting incomprehension of Fogarty’s argument, finally expressed understanding of the proffered defense. The court nevertheless found defendant guilty, stating that Fogarty’s defense would best be tested on appeal. The court observed that “[ijt’s a unique defense but it’s not for me to decide. You’re probably going to have to appeal that and get a ruling. I’m going on Tischio.” The court did not pass on the credibility or demeanor of the various witnesses.
The Law Division affirmed defendant’s conviction, implying at one point that its review was de novo on the record below, but also incorrectly describing its function as that of reviewing the record merely to determine whether there was sufficient evidence to sustain the findings of the municipal court. Although the municipal court had made no findings on the credibility of witnesses, the Law Division inexplicably referred to that court’s determination that “the police officer is far more credible than * * * defendant.” The Law Division also overlooked Fogarty’s uncontradicted testimony in municipal court that he had told the police officer he owned the Blazer, expressing disbelief that the officer told Fogarty to drive the Blazer: “I can’t see how in the world would this * * * police officer know to which vehicle Fogarty was connected.” Affirming Fogarty’s conviction, the Law Division reasoned that the proffered “entrapment” defense was unavailing in the absence of *78proof that the officer knew that Fogarty was intoxicated when he ordered him to drive the truck.
The Appellate Division reversed in an unpublished opinion and remanded the matter to the municipal court for a new trial. The court determined that the Law Division had improperly rejected as inherently unbelievable defendant’s uncontradicted testimony of the events leading to his operation of the Blazer. Although acknowledging that the common-law defense of entrapment was inapplicable because the officer lacked knowledge of defendant’s intoxication when ordering him to drive, the court relied on out-of-state cases to reach the conclusion that a defense of “quasi-entrapment,” or estoppel, would be available if defendant could prove that he would not have driven the Blazer but for the officer’s order.
II
The estoppel defense adverted to by the Appellate Division, although unfamiliar to New Jersey case law, has a respectable lineage rooted in due process and traceable directly to two United States Supreme Court decisions, Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), and Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959). Its premise is that one should not be subject to prosecution for acts committed at the direction of a governmental official. The majority opinion apparently assumes that an essential element of the defense is police misconduct “so egregious as to violate defendant’s rights to due process and fundamental fairness.” Ante at 66, 607 A.2d at 628. Not so. Misconduct by the government official whose direction is followed is not critical to the estoppel defense. No evidence in this record suggests that the officer who told Fogarty to drive did anything improper, his obvious intention being to break up the brawl that had erupted in the parking lot. The critical element of the defense is whether reliance on the official’s direction was objectively reasonable under the prevailing circumstances..
*79In Raley, appellants had raised the privilege against self-incrimination when questioned by a State legislative commission. The commission assured appellants that they could exercise their constitutional right to remain silent. After they did so, the State prosecuted them for contempt. The Supreme Court reversed the convictions even though there was no suggestion that the commission had intended to deceive appellants. 360 U.S. at 438, 79 S.Ct. at 1266, 3 L.Ed.2d at 1355. Relying on the Due Process Clause of the Fourteenth Amendment, the Court declared, “After the Commission, speaking for the State, acted as it did, to sustain the Ohio Supreme Court’s judgment would be to sanction an indefensible sort of entrapment by the State — convicting a citizen for exercising a privilege which the State had clearly told him was available to him.” Id. at 425-26, 79 S.Ct. at 1260, 3 L.Ed.2d at 1348.
Similarly, in Cox v. Louisiana, supra, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487, the Chief of Police of Baton Rouge had given the defendant permission to demonstrate across the street from the courthouse. The demonstration followed, but the Sheriff withdrew the permission because of his mistaken belief that the demonstration threatened to breach the peace. The defendant then was prosecuted for conducting a demonstration “near” a courthouse. A fair inference from the opinion is that the Police Chief had given the defendant permission without having any intent to induce criminal activity. Following Raley, and reasoning that the defendant “was advised that a demonstration at the place it was held would not be one ‘near’ the courthouse within the terms of the statute,” the Court held that the Due Process Clause “does not permit convictions to be obtained under such circumstances.” Id. at 571, 85 S.Ct. at 484, 13 L.Ed.2d at 496; accord United States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655, 670-75, 93 S.Ct. 1804, 1814-U.S. 655, 670-75, 93 S.Ct. 1804, 1814-17, 36 L.Ed.2d 567, 578-81 (1973) (defendant entitled to assert its reliance on longstanding administrative construction of statute as defense to illegal pollution charge); United States v. Laub, 385 U.S. 475, 487, 87 S.Ct. 574, 581, 17 L.Ed.2d 526, 534 (1967) (“Ordinarily, citizens *80may not be punished for actions undertaken in good faith reliance upon authoritative assurance that punishment will not attach.”); see also Sundstrom v. United States, 419 U.S. 934, 936, 95 S.Ct. 205, 206, 42 L.Ed.2d 163, 164 (1974) (Douglas, J., dissenting from denial of certiorari) (“Due process forbids the Government from actively misleading a citizen as to the law’s commands. A citizen may be misled as much by a failure to correct an erroneous impression as by incorrect advice, affirmatively conveyed.” (citing Cox, supra, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487, and Raley, supra, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344)).
The holding of Raley and Cox has been applied in other federal cases in which the defendant relied on the erroneous advice of a governmental official, even though the official had no intention of inducing a violation of law. In United States v. Brady, 710 F.Supp. 290 (D.Colo.1989), a county judge informed the defendant, a convicted felon, that he could continue to use a firearm for hunting and trapping when, in fact, a federal statute barred convicted felons from possessing firearms. Under the statute, a person’s reasonable belief that he was violating no law was not a defense because specific intent was not an element of the crime. Id. at 294. The court nevertheless dismissed the indictment, reasoning that to punish the defendant for conforming his conduct to a judge’s erroneous interpretation of the law would be fundamentally unfair. Id. at 296; accord United States v. Albertini, 830 F.2d 985 (9th Cir.1987) (defendant relied on Ninth Circuit decision later reversed by United States Supreme Court); United States v. Tallmadge, 829 F.2d 767 (9th Cir.1987) (defendant relied on erroneous advice of federally-licensed gun dealer that he was permitted to purchase firearms); Dellums v. Powell, 566 F.2d 167 (D.C.Cir.1977) (defendants held demonstration in reliance on permission of Speaker of House of Representatives), cert. denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978). But see United States v. Bruscantini, 761 F.2d 640, 641-42 (11th Cir.) (identical situation as Brady but declining to apply Cox and Raley *81because no entrapment when government that advises is not the same as government that convicts), cert. denied, 474 U.S. 904, 106 S.Ct. 271, 88 L.Ed.2d 233 (1985).
Another line of cases has applied the principle of Raley and Cox to circumstances in which the governmental official, invariably a police officer, having knowledge of a defendant’s disability has nevertheless directed a defendant to take action resulting in a violation of law. See People v. Jensen, 37 Ill.App.3d 1010, 347 N.E.2d 371, 375-76 (1976) (affirmative defense of entrapment available when ranger noticed defendant’s intoxicated state and ordered defendant to move car, and defendant subsequently was prosecuted for driving with suspended license); State v. Miller, 187 So.2d 461 (La.Ct.App.1966) (reversing conviction of defendant charged with monitoring radio frequency used by sheriff when police ordered defendant to connect loose wires so radio would function); State v. Bisson, 491 A.2d 544 (Me.1985) (defendant entitled to instruction on entrapment defense when he was ordered to drive after allegedly informing officers that he was too drunk to drive); City of Hamilton v. Collier, 44 Ohio App.2d 419, 339 N.E.2d 851, 853 (1975) (defendant cannot be prosecuted for possessing open container of alcohol on public road when he exited automobile and stood on public road pursuant to police order); Evans v. State, 690 S.W.2d 112, 114 (Tex.Ct.App.1985) (dictum) (noting that if officer had told defendant to drive and had been aware of defendant’s intoxication, defendant might have been entrapped); State v. Vanderlas, 483 A.2d 263 (Vt.1984) (entrapment instruction appropriate where police, on determining that passenger was intoxicated, drove her to car and told her not to drive for two hours).
The foregoing cases are relevant to but not decisive of defendant’s culpability, because according to Fogarty’s testimony the officer who ordered him to drive his truck was unaware that Fogarty was intoxicated. The Court is of the view that Fogarty was obligated, no matter how emphatic the officer’s *82direction, to inform the officer that he was too drunk to drive. Ante at 67, 607 A 2d at 628. The Appellate Division did not emphasize the reasonableness of Fogarty’s conduct, either in failing to inform the officer of his intoxication or in following the officer’s order, focusing instead on whether Fogarty could establish by a preponderance of the evidence that he would not have driven but for the police officer’s instruction.
The Court rejects the Appellate Division’s “but for” standard, questioning whether any “defense that relies in part or entirely on defendant’s subjective intent” can successfully be asserted in a DWI prosecution. Ante at 67, 607 A 2d at 628. The Court’s analysis, however, fails entirely to consider whether defendant’s objectively reasonable reliance on the officer’s direction could constitute a defense to the charge of DWI. Indeed, the Court concludes that however reasonable Fogarty’s reliance on the officer’s command may have been, the Court cannot countenance an estoppel-type defense because its “potential for pretext” raises a risk of “damage to the enforcement of New Jersey’s drunk-driving laws.” Ante at 69-70, 607 A 2d at 629. The Court raises the ominous specter of hordes of intoxicated drivers being dispersed by police outside of numerous bars, restaurants, and stadiums, all asserting as a defense to DWI charges that they drove in response to police directives. Ante at 69, 607 A 2d at 629. That the Court goes to such lengths to justify its refusal to permit Fogarty to present his defense is ample indication of its discomfort with its own rationale.
The commentators who have addressed the subject agree that a standard of objectively reasonable reliance on a governmental directive properly balances the State’s law-enforcement interest against the public interest in avoiding inequitable prosecutions. Recent Cases, Defenses: State Estopped to Prosecute Criminal Conduct Suggested by Police, 81 Harv.L.Rev. 895, 897-98 (1968) (“In assessing the reasonableness of the citizen’s reliance account must be taken of the circumstances from the standpoint of the defendant at the time of his action.”); accord Note, *83Applying Estoppel Principles in Criminal Cases, 78 Yale L.J. 1046, 1057 (1969) (“Before a court can judge whether reliance on official misleading was justifiable, it will have to consider all the circumstances under which reliance is claimed.’’).
A handful of out-of-state cases acknowledge that in certain circumstances police conduct can be sufficiently intimidating as to make it reasonable for a defendant not to inform the officer of his disability and not to pursue other alternatives. People v. Donovan, 53 Misc.2d 687, 279 N.Y.S.2d 404 (Ct.Spec.Sess.1967), illustrates the point. Police officers found the defendant asleep in her car parked in the homeowner’s driveway. The officers ordered her to leave. When she refused, the officers drove off but parked a block away in order to keep the driveway in sight. When the defendant drove out of the driveway shortly thereafter, she was arrested and charged with driving while impaired. In holding that the officers’ conduct estopped the State from prosecuting the defendant, the court noted:
There can be no doubt that defendant here was keenly disappointed in the actions of the police who suggested that she drive the car and then arrested her when she did. It may be said that defendant knew that she was not in fit condition to drive, and that she should have explained this to the police. But the average citizen does not argue with uniformed authority; when the law suggests “Move on”, the healthy instinct is to get going. Moreover, one in defendant’s condition cannot be expected to discuss with reasoned calm the merits and dangers of the proposed action. [Id. 279 N.Y.S.2d 404, at 406.]
In State v. Ragland, 4 Conn.Cir. 424, 233 A.2d 698 (1967), the defendant was charged with illegal parking and was instructed by the police officer to drive to headquarters. The defendant did not inform the officer his license had been suspended, but asked instead if the officer would drive him. The officer refused, so the defendant drove to headquarters and was charged with driving with a suspended license. Although acknowledging that “[t]he facts do not bring the matter squarely within the doctrine of entrapment,” the Court dismissed the charge, concluding that the defendant’s operation was involuntary “for he was then under arrest and subservient to the orders of an officer.” Id. 233 A.2d at 701-02; accord *84Applying Estoppel Principles in Criminal Cases, supra, 78 Yale L.J. at 1065-66 (orders by police officer to commit minor crimes “offer an all but irresistible case for estoppel. Sufficient discretion makes an official by and large the lawmaker, the ordinary citizen cannot be expected to challenge the legal accuracy of the order and the official’s legal power to give it.”).
Other courts have understood that a police officer’s order may not be a subject for debate. “An order given in the capacity of a police officer is a particularly potent form of government inducement.” State v. Bisson, supra, 491 A.2d at 548. This Court has made the same point in the context of allegedly consensual searches. “Many persons, perhaps most, would view the request of a police officer to make a search as having the force of law.” State v. Johnson, 68 N.J. 349, 354, 346 A.2d 66 (1975).
The majority makes short shrift of the issue of the reasonableness of defendant’s reliance on the officer’s direct order. “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.” Ante at 71, 607 A.2d at 630. Maybe so, but then again one might suspect that Fogarty, having witnessed the officer subduing his 6'2", 210 pound friend Leonard with a nightstick, might have thought twice about the wisdom of questioning the officer’s order to move the truck. Fogarty might have reasoned that he was the nightstick’s next target if he did not get in the truck and drive it out of the lot.
As interesting as speculation on such questions may be for an appellate tribunal perusing a cold record, the issue whether Fogarty’s reliance on the officer’s order was objectively reasonable is initially one for a fact-finder. Unfortunately, we have no fact findings on this record, either by the municipal court— which deemed the issue to be one for a higher tribunal — or by the Law Division, which was unsure of the standard of review *85and unaware that Fogarty had testified that he had told the officer he owned the Blazer.
Rather than engaging in unfounded conjecture about whether Fogarty, acting with objective reasonableness, should have declined to drive, informed the officer of his inebriated condition, or obeyed the officer’s command, we should remand this case for a new trial. The legal issue of estoppel would then be informed by a standard of objective reasonableness rather than “but for” causation, and the trial court could make the necessary factual and legal determinations.
There is nothing complicated about Fogarty’s proffered defense. He contends that he drove only because a police officer wielding a nightstick ordered him to move his truck, and that the circumstances made it unwise for him to refuse or explain that he may have been too drunk to drive. The credibility of his explanation is for a trial court, but this Court dilutes due process when it holds that, even if true, Fogarty’s account of the events in the parking lot could not constitute a defense to the DWI charges.
Surely our DWI jurisprudence could accommodate a modest detour to assure that this defendant receives the fair trial to which he is entitled. In addition to our institutional interest in the strict enforcement of the DWI statute, other institutional interests are at stake here as well:
We should all recognize that our cases may occasionally turn up freakish factual contexts in which the rigid, mechanistic application of a sound, well-established, respected principle of law will produce a result that is plainly at odds with substantial justice. This is such a case. When, as here, there is a collision between law and common sense, this Court should exert its best effort to vindicate good sense. Our institutional legitimacy depends on our succeeding in that endeavor. [State v. Vick, 117 N.J. 288, 293, 294-95, 566 A.2d 531 (1989) (Clifford & Stein, JJ., dissenting).]CLIFFORD and POLLOCK, JJ., join in this opinion. *86For Reversal and Remandment — Chief Justice WILENTZ and Justices HANDLER, O’HERN and GARIBALDI — 4. For Remandment — Justices CLIFFORD, POLLOCK and STEIN — 3.