DUI Senator Misreads Constitution

Kentucky State Senator Brandon Smith, already famous for his amazingly bad misreading of climate science, has now added a bad misreading of the state Constitution to his repertoire. And so far, a judge is letting him get away with it.

Arrested on January 6 — the first day of this year’s legislative session — for drunk driving, Sen. Smith is now claiming that all charges should be dropped because of this clause in the state Constitution:

“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.”

The judge and the county attorney in the case have delayed the case until February 12 so they can “review the documents.” Let me give them some help.

It took me about ten minutes of Google work to find a good explanation of the “privileged from arrest” clause. Why so quickly? Because the same clause is in the US Constitution, and for the same reason.

Here’s the excellent explanation, from the Heritage Foundation:

The Privilege from Arrest Clause provides a Member of Congress a privilege from civil arrest only, but not from other civil processes. Even the privilege from civil arrest would be valid only while Congress is in session.

Civil arrest is the physical detainment of a person, by lawful authority, to answer a civil demand against him. At the time the Constitution was adopted, civil arrests were common. Long v. Ansell (1934). The Framers likely feared this tool could be misused to interfere with the legislative process. Civil arrest is rarely, if ever, practiced, so this clause is virtually obsolete and has little application today.

The Supreme Court interpreted the language “in all Cases, except Treason, Felony, and Breach of the Peace” to encompass all crimes. Williamson v. United States(1908). Tracing the origins of the clause to parliamentary privilege, the Court found this identical language was used to qualify Parliament’s privilege from arrest so that the members of Parliament were not immune from criminal prosecution. The Court concluded that the Framers’ use of the identical phrase, without any explanation, indicated that Congress’s privilege was to have the same limitation regarding criminal actions as did the parliamentary privilege from which the language was borrowed. The clause, therefore, does not provide Congress with any immunity from criminal prosecution.

The Supreme Court, applying the Framers’ intent, later declared that the clause also did not provide any privilege from civil process. Long v. Ansell. Hence, civil litigants can compel Members of Congress to appear in a court of proper jurisdiction to defend against civil actions. Furthermore, the Court has so narrowly interpreted the clause that Members of Congress may even be compelled by subpoena to testify in criminal and civil actions while Congress is in session.

So, Senator, while I applaud your ingenuity, your legal reasoning is as off-base as your understanding of climate science. And, while the “official breathalyzer refusal” part of the story sounds fishy to me, if you did have a .088 on the field breathalyzer, you need to face that fact and get some help. As much as I like to make fun of your science statement, drunk driving is no laughing matter.