I considered several ways to open this blog post. One was to make the common comment that our nation's politicians continue to exhibit amazing hubris when they are faced with legal trouble.
Another was to note that, while the law Senator Smith relies on in seeking the dismissal of his DUI charge may seem surprising, lawmakers have little incentive to take a law that protects them from criminal charges off the books. As the law in question is in Kentucky's constitution, it would not be easily changed regardless.
But there is another lesson here, too. Specifically the lesson that there continues to be a disconnect between how the law treats normal citizens and how it treats members of our nation's elite.
The facts: In early January, Kentucky State Senator Brandon Smith was pulled over for speeding by Kentucky State Police. Officers had reason to believe that he was driving under the influence. Smith consented to a breath test, which revealed his breath alcohol content was over the legal limit.
Smith was taken to a local jail, where he allegedly refused to take an official test. His attorney claims that Smith merely did not want to take the test until he could speak to an attorney, and that the jail's phone malfunctioned. Kentucky state law suspends the license of anyone refusing to submit to a breath test.
Last week, Smith's attorney submitted a motion to dismiss based on Smith's inability to contact an attorney and citing to section 43 of the Kentucky constitution, written in 1891.
Section 43 states: “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 was arrested on the first day of this year's legislative session. The trial judge will rule on the motion February 12. Prosecutors are confident that the trial court will realize that the purpose of the law was not to allow elected officials to get away with serious crimes.
I am never surprised when those in power find loopholes that relieve them of the consequences that normal people would still face. To my knowledge, no similar law is on the books in the state of Washington. We like to hold our politicians accountable for their actions.
I do see one silver lining in this story. Smith's motion, whether successful or not, should remind us that a good attorney can be extremely helpful when a defendant faces criminal charges. No investigation is perfect. There are always parts to pick at to protect a defendant's rights.
Attorney Kevin Trombold has been defending the rights of criminal defendants in and around Seattle, including in King, Pierce, and Snohomish counties, for decades. If you have been charged with a DUI, do not hesitate to contact him for a free consultation.