Anyone who has been arrested for driving under the influence (DUI) wishes that he or she could claim that he or she could not be arrested because he or she was privileged. Such privileges are few and far between, and most of the time a privilege from arrest is not upheld. Recently in the news the topic of legislative privilege from DUI arrest has become popular.
What privileges are there from a DUI arrest?
Legislative privilege is an immunity from arrest granted to legislators. This has come up in the DUI context in Kentucky. Specifically, a Kentucky state senator Brandon Smith claimed he was privileged from arrest when he was being arrested and charged with a DUI.1 He had been driving over the speed limit and failed field sobriety tests which showed he had a 0.88 blood alcohol concentration.2 The political privilege is a constitutional issue which would technically grant a lawmaker privilege from arrest. Section 43 of the Kentucky Constitution, which dates back to 1891,3 states that:
“the members of the General Assembly shall, in all cases except treason, felony, breach or surety of peace, be privileged from arrest during their attendance on the sessions of their respective Houses, and in going and returning from the same; and for any speech and debate in either House they shall not be questioned in any other place.”4
The root of the legislative immunity clause in state constitutions is said to be in the 16th and 17th centuries to protect lawmakers from English monarchs.5 Later, the framers of the Constitution added legislative immunity in Article I Section 6 to prevent members of Congress from arbitrary arrest.6 Many other states have laws that protect legislators from any arrest except for treason, felony, or breach of the peace.
Does Arizona have a legislative privilege from DUI arrest?
While Arizona does have legislative immunity from arrest in certain situations, there have been attempts to repeal it. Legislative immunity has come up in Arizona before as well, but it was not very successful. While the immunity or privilege was alleged in a context different from DUI (i.e. a senator having a fight with his girlfriend), the argument did not hold water.7 Similar incidents occurred in 1988, when Governor Jan Brewer was briefly detained and handcuffed for driving under the influence when she was involved in an accident.8 While she did not claim the privilege, once she was identified as a senator the officers determined that she could not be arrested.9 In 2012 there was a movement to amend the state Constitution to delete wording that granted arrest immunity to legislators during, and 15 days before, legislative sessions.10 The immunity in Article IV, Part 2, Section 6 of the Constitution of Arizona is otherwise absolute and personal to each individual legislator, meaning it can be claimed or waived by the legislator.11 In 2014, another proposition to repeal legislative immunity from arrest in certain situations was brought forward.12 This mainly stems from the complaints that legislative immunity is being claimed improperly, such as to get out of drunk driving charges.13
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1 Matt Agorist, Senator Wants DUI Charges Dismissed Citing That Lawmakers Are “Privileged From Arrest,” DCCLOTHESLINE.COM (Jan. 23, 2015), http://www.dcclothesline.com/2015/01/23/senator-wants-dui-charges-dismissed-citing-lawmakers-privileged-arrest/.
3 Morgan Chilson, Kentucky Senator Brandon Smith Wants Out of DUI With Immunity Law, NEWSMAX.COM (Jan. 23, 2015 7:20 PM), http://www.newsmax.com/TheWire/kentucky-senator-brandon-smith-dui/2015/01/23/id/620456/.
4 Matt Agorist, supra note 1.
5 See Paul Davenport, Arizona Legislative Immunity Repeal Proposed, HUFFINGTONPOST.COM (Jan. 21, 2012 5:12 PM), http://www.huffingtonpost.com/2012/01/21/arizona-legislative-immunity-repeal_n_1221098.html.
6 Separation of Powers–Legislative Immunity, NCSL.ORG, http://www.ncsl.org/research/about-state-legislatures/separation-of-powers-legislative-immunity.aspx (last visited Jan. 26, 2015).
7 Andrew DeMillo, Repeal of Legislative Immunity Proposed In Arizona, FOXNEWS.COM (Jan. 21, 2012), http://www.foxnews.com/us/2012/01/21/repeal-legislative-immunity-proposed-in-arizona/.
8 Paul Davenport, supra note 5.
11 Arizona Legislative Manual, AZLEG.GOV 23 (2003), available at http://www.azleg.gov/alispdfs/Council/legman2003.pdf.
12 Matthew Hendley, Legislative Immunity Repeal Proposed Again By Group Of Arizona Lawmakers, BLOGS.PHOENIXNEWTIMES.COM (Jan. 20, 2014 6:00 AM), http://blogs.phoenixnewtimes.com/valleyfever/2014/01/legislative_immunity_repeal_arizona_bundgaard_patterson.php.