POLITICS
01/26/2015 04:59 pm ET Updated Jan 26, 2015

Kentucky Lawmaker Wants DUI Charge Dismissed Based On Rule From 1891

FRANKFORT, Ky. (AP) — A Kentucky 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 charged with DUI on Jan. 6, the first day of the 2015 legislative session. A citation filed in Franklin County Circuit court says Smith had a .088 percent blood alcohol level in a portable breath test. A person is presumed drunk when the alcohol to blood ratio is .08 and above.

His attorney cites Section 43 of the Kentucky Constitution, which says that except for treason and certain other offenses, legislators are "privileged from arrest during their attendance on the sessions of their respective Houses, and in going to and returning from the same." Section 43 was ratified in 1891.

According to The Courier-Journal, Kentucky Senate President Robert Stivers (R) disagreed with Smith's request.

"No member of the General Assembly is above the law," Stivers said in a statement. "While Kentucky's Constitution does provide for a limited form of legislative immunity, as does the United States Constitution and most state constitutions, it is clear that the immunity does not apply in this situation."

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