Legislator says his DUI charge should be dismissed, cites obscure section in Kentucky constitution
A Kentucky state senator facing drunken-driving charges is using a little-noticed section of the state’s constitution to try to avoid prosecution, according to Lex18.com.
Sen. Brandon Smith of Hazard picked up the charges Jan. 6, the first day of the state’s new legislative session. Police in Frankfort, the state capital, say they originally pulled Smith over for speeding and then smelled alcohol on his breath.
In court yesterday, Smith’s attorney argued that Smith is immune from prosecution under Section 43 of the Kentucky state constitution, which says: “The 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; and for any speech or debate in either House they shall not be questioned in any other place.”
Smith’s attorney argued that this means Smith is immune from arrest during the legislative session, and therefore the case should be dismissed. But the news station quoted a political science professor who noted that “breach or surety of the peace” is “totally flexible language.”
The report also suggested that immunity might not apply because court records show Smith was driving home from a friend’s house, not a legislative session.
An assistant district attorney for Franklin County, David Garnett, said the writers of Kentucky’s constitution did not intend to “give blanket immunity to all legislators” during the legislative session.
Smith’s attorney, who declined to comment, also argued that Smith was denied a working phone to make a phone call after arrest, and that the lawmaker didn’t refuse the breath test.
Smith’s arraignment is scheduled for Feb. 12.
