Lawyers for Senator Brandon Smith has filed a motion to dismiss his DUI charges based on an 1891 KY Law that states that legislators are "privileged from arrest" while in session.

 

Senator's attorney files motion to dismiss DUI charge based on state law

 

Here is the law it is based on (Kentucky Constitution Section 43)

 

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[TD=width: 591]Kentucky Constitution[/TD]

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[TD=width: 591]Section 43

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[h=4]Privileges from arrest and from questioning as to speech or debate.[/h]

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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.

[h=5]Text as Ratified on: August 3, 1891, and revised September 28, 1891.

History: Not yet amended.[/h]

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:ohbrother:

:no:

 

Dude is a schmuck for even trying something like this.

If it is still a law how could he be convicted?

For the legal minds of BGP, does the lawyer have a case for dismissal?

One more reason why our state constitution needs to be radically changed.

:no:

 

Dude is a schmuck for even trying something like this.

Or just a very diligent attorney. The law is the law, and if this is still one the court has to honor it, right?

This will make the national news in 3... 2... 1...

How does this law prevent him from prosecution, isn't he charged with a felony? Or am I reading the law wrong?

I would argue DUI is a breach of the peace. Don't know how far I'd get but if I were the prosecutor that's how I would play it.

This is almost a word-for-word restatement of Article 1, Section 6, of the federal Constitution, which affords the same protection to members of the US Congress. It was designed when first written to prevent local law enforcement (or an unhappy national executive) from detaining lawmakers in order to prevent them from voting. Pretty logical.

 

The issue comes up in the definition of "breach of the peace". It's a common law definition, and is not formalized in any state statues. Doesn't usually cover speeding, but drunk driving might be a different thing. It's usually for things like fighting in public, screaming at people, letting your dog bark without controlling him... a lot of stuff involving noise.

 

I'd hate to be that judge: stuck between a state senator and a press and public that has spent the last few years fuming about the easy treatment of DUI offenders in Kentucky.

How does this law prevent him from prosecution, isn't he charged with a felony? Or am I reading the law wrong?

 

DUI is not a felony offense in Kentucky until the fourth time in a five-year period I believe.

This is almost a word-for-word restatement of Article 1, Section 6, of the federal Constitution, which affords the same protection to members of the US Congress. It was designed when first written to prevent local law enforcement (or an unhappy national executive) from detaining lawmakers in order to prevent them from voting. Pretty logical.

 

The issue comes up in the definition of "breach of the peace". It's a common law definition, and is not formalized in any state statues. Doesn't usually cover speeding, but drunk driving might be a different thing. It's usually for things like fighting in public, screaming at people, letting your dog bark without controlling him... a lot of stuff involving noise.

 

I'd hate to be that judge: stuck between a state senator and a press and public that has spent the last few years fuming about the easy treatment of DUI offenders in Kentucky.

 

In your legal opinion, does he have a high probability of walking away without conviction?

In your legal opinion, does he have a high probability of walking away without conviction?

 

No way a district judge lets him slide on something like this. Too vulnerable to the press and popular outcry come election season.

 

I think the judge overrules the motion and the interesting thing to see will be what the appeals court does with it. There's no way they can let that interpretation stand. They'll shoot him down for good.

 

The big reason it can't stand is that this is the same language in a Kentucky law giving arrest immunity to all citizens going to vote on election day. Can you imagine if some Joe Schmo brought this defense because he got pulled over for drunk driving on election day? NO WAY they'd let that go.

DUI is not a felony offense in Kentucky until the fourth time in a five-year period I believe.

 

You are correct.

 

As to getting a dismissal on these grounds, Section 43 was not intended as a sanctuary for members who had committed a public offense. Swope v. Com. (Ky. 1964) 385 S.W.2d 57. DUI being a public offense

 

Just my two cents as a young criminal defense attorney.