Attorney: Lawmaker can’t be charged with DUI during session


Associated PressJanuary 22, 2015

FRANKFORT, KY. — A state senator is trying to have his DUI charge dismissed because the state constitution bans lawmakers from being arrested while the legislature is in session.

Republican state Sen. Brandon Smith of Hazard was arrested and charged with DUI on Jan. 6, the first day of the 2015 legislative session. Smith had a .088 percent blood alcohol level in a portable breath test, according to a citation filed in Franklin County Circuit court. A person is presumed drunk when the alcohol to blood ratio is .08 and above.

But attorney Bill Johnson has filed a motion to dismiss the charges citing section 43 of the Kentucky Constitution which states that “members of the General Assembly shall, in all cases except treason, felony, breach or surety of the peace, be privileged from arrest during their attendance on the sessions of their respective Houses, and in going to and returning from the same.”

“If you can’t arrest them, then you can’t try them,” Johnson said.

That language was added to the constitution in 1891. Johnson said the purpose was to “keep legislators from being bothered by people who would arrest them during sessions.”

Attempts to reach the county prosecutor’s office were unsuccessful. But Assistant Franklin County Attorney David Garnett told The State Journal ( ) that it was “an interesting argument.”

“My preliminary impression is that the 1891 constitution did not intend to give legislators blanket immunity for any act committed during the legislative session,” he said.

A hearing on the motion is scheduled for Feb. 12.

This isn’t the only odd thing in Kentucky’s constitution. The document requires elected office holders to swear an oath that they have “not fought a duel with deadly weapons within this State nor out of it.”


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