Posted on 09/27/2005 5:13:29 AM PDT by Cincinatus' Wife
After Rep. David Graves was charged with drunken driving for a second time, he and his lawyer offered a surprising defense:
As a lawmaker, Graves cannot break the law — at least not while the Legislature is at work.
The Macon Republican is using an obscure provision in the state constitution to argue that he should not be prosecuted for a DUI he received in Cobb County in February, during the 2005 session of the General Assembly.
The centuries-old provision holds that a lawmaker cannot be arrested during sessions of the General Assembly, legislative committee meetings or while they're "in transit," except in cases of "treason, felony, or breach of the peace." Such provisions were generally written to protect lawmakers from political intimidation.
Cobb State Court Judge Irma B. Glover is expected to make public her ruling today on Graves' "legislative immunity" defense. His trial is set for today.
Graves — chairman of the House committee overseeing laws governing the alcohol industry — has said that on Feb. 15, he and other committee chairmen went from the Capitol to a dinner meeting, where they conferred about the status of legislation and plans for the next legislative day. His lawyer, William C. "Bubba" Head, argues Graves should have been granted immunity from arrest because he was leaving a gathering that was tantamount to a committee meeting, according to legal filings.
Gary Jones, the assistant solicitor in Cobb State Court assigned to prosecute the cases, said his office is fighting the contention.
"Just because you're having dinner with other politicians doesn't make it a committee meeting," Jones said. "They could be at a casino doing the same thing, and he could allege it was a committee meeting, even though they're gambling. Only in this case, they were drinking — which to me is another indication it was not a committee meeting."
The prosecutor said Graves could not remember details of the meeting such as whom he met with or which laws were discussed.
Neither Head nor Graves could not be reached for comment late Monday.
Graves, 47, is actually awaiting trial on two DUI charges, one from March 2004, when authorities say he ran a red light, and the one from Feb. 15, which occurred at a police roadblock in Vinings. So far he is claiming legislative immunity only in the latest case. If convicted on one or both charges, Graves faces possible fines, a short jail stint and perhaps the loss of his House committee chairmanship.
Georgia's legislative immunity provision has been part of its constitution since 1789. It's one of many across the country.
One of the early immunity laws, in Virginia, dates to a 17th-century incident in which the royal governor arrested a lawmaker to keep him from voting, according to the Norfolk Virginian-Pilot newspaper.
But in recent years legislators and staffers have tried to use immunity laws to defend themselves against nonpolitical charges. In 1996, a Virginia judge rejected a legislative aide's immunity claim and convicted her of drunken driving. And in 2002, courts rejected a Wisconsin senator's attempt to use the provision to shield himself from charges of illegally raising campaign contributions.
In 1985, then-state Attorney General Michael Bowers weighed in on the topic in Georgia, issuing a legal opinion that the provision in the constitution might give legislators immunity from physical arrest. But, he concluded, "There is no constitutional immunity for members of the General Assembly from prosecution for speeding violations or other violations of criminal law."
Jones expects today's ruling will delay Graves' trial and won't be the last word on the immunity issue.
"I'm sure either side will appeal, which means we'll end up in the Supreme Court over this constitutional provision," he said.
You break the law..... you pay the penalty.
I think this interpretation is a good one. The law prevents the use of physical arrest, a power which could easily be abused; for example, a legislator could not be physically arrested and detained to prevent him/her from a vote. Since an arrest is not subject to any particular judicial oversight at the time, it could be used as a handy mechanism to keep away legislators. To say that they have blanket immunity from prosecution is absurd. Not to mention that the guy is using a pretty lax definition of official business. I hope they throw the book at him, and hard!
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