[There are several juicy tidbits in this article, but I choose this one: yet another lawmaker refuses to submit a breath/blood sample ... I'll buy a beer for the first person to find one who DID give a sample upon arrest! ]

The Atlanta Journal-Constitution
> Published on: 09/27/05

A state lawmaker cannot wiggle out of a drunken driving charge by claiming his drinking had been part of an official legislative function, a Cobb County judge ruled this morning.

Rep. David Graves (R-Macon) tried to use an obscure provision in the state constitution to argue that he should not have been arrested for DUI in February, during the 2005 session of the Georgia 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 to a meeting or session. Exceptions are made for cases of "treason, felony or breach of the peace."

But at a hearing this morning, Cobb State Court Judge Irma B. Glover denied Graves' request to use his legislative immunity defense.

Well-known DUI attorney, William C. "Bubba" Head, who is representing Graves on this - and another DUI from 2004 - immediately filed a motion to appeal Glover's ruling to the Georgia Supreme Court.

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 argued that 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 Graves, had argued against the defense.

"Just because you're having dinner with other politicians doesn't make it a committee meeting," Jones said in an interview. "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."

Glover agreed, ruling there was no evidence to support that the gathering was an official committee meeting.

"The fact that several legislators attended and that the defendant was wearing his legislative pin does not sanction the dinner as a session of the legislature or a meeting of any committee thereof," Glover wrote in her order.

Glover noted that Graves, who had refused an alcohol test at the scene, admitted to the arresting officer that he had consumed 2-4 drinks.

Graves was in the courthouse but did not appear before the judge or reporters. Head told Glover after her ruling: "I think this situation is so unique it needs to have an appellate court review."

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. 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."

I'm guessing the "committee meeting" was not posted, had no printed agenda, etc. -- so maybe the GA prosecutor should see about any open meeting violations?

So, I guess no exception will be made for a Breach of the Peace. Either this Rep is the most unfortunate man, to have been arrested 3 times in two years for DWI (only having drank 3 times in 2 years), or this may be a continual problem which needs intervention.

Of course, even though it is GA, we should presume him innocent until proven otherwise?

In order that each jury (if he so chooses) understands the burden of proof, they should be instructed that unless satisfactory proof is admitted into evidence at trial they must resolve their doubts in favor of the defendant. No one (in Georgia or elsewhere) needs to assume anything about what he or the police have been doing during the last two years. He sounds like a model committee chairman to me. Definitely knows his Georgia constitutional law. Wonder why no one observed the provision of the Constitution which says: "The State of Georgia shall have full and complete authority to regulate alcoholic beverages and to regulate, restrict, or prohibit activities involving alcoholic beverages."

[This message was edited by Martin Peterson on 09-29-05 at .]

If the Georgia privilege is similar to that for state legislators in Texas, doesn't the privilege only apply to a custodial arrest, not a criminal charge which can always be filed after the privilege expires?

Janette Ansolabehere

Lawmaker jailed, ends case on 2 DUIs

The Atlanta Journal-Constitution
Published on: 11/16/05

State Rep. David Graves swapped his trademark pinstriped suit for a blue jailhouse jumpsuit Tuesday after closing the case on his two DUIs in Cobb County.

Graves (R-Macon) gained national attention this fall when he tried to invoke a centuries-old provision granting legislators limited immunity from arrest to avoid prosecution on a DUI last February. He later abandoned that defense, and, on Tuesday, stopped fighting the charges.

Graves, 47, a nine-year legislative veteran and one-time House committee chairman, pleaded guilty to the second DUI Tuesday, after a judge found him guilty earlier this month of a previous drunken driving charge he received in 2004.

Graves was then sentenced by Cobb State Court Judge Irma Glover to serve 10 days in the county jail, followed by 20 days of home confinement and 12 months on probation. He also was ordered to pay a $1,600 fine, perform 280 hours of community service and surrender his driver's license for 12 months, Cobb County Solicitor Barry Morgan said.

Morgan said Graves' sentence closely follows state law.

"He didn't get any special treatment," Morgan said.

The law requires first-time offenders to spend at least 10 days in jail, but gives judges the authority to cut, waive or suspend all but 24 hours. It also gives judges the authority to mandate 90 days to 12 months in prison on a second offense, but with discretion to suspend all but 72 hours of incarceration.

Graves went from court to the Cobb County Jail to begin serving his 10 days.

"He's worn out," said Graves' attorney, William C. "Bubba" Head. "What he's already been through from a publicity standpoint is far worse than anything he'll deal with with the judicial system. The most notorious and celebrated DUI case in Georgia history is now over."

Michelle Hitt, spokeswoman for House Speaker Glenn Richardson (R-Hiram), said Graves "has taken personal responsibility for his actions. This is a personal situation between David, his family and the courts."

Graves was arrested in March 2004, while the General Assembly was in session in Atlanta. Authorities said he ran a red light and registered .13 on a blood-alcohol test, well over the .08 limit to be considered DUI in Georgia.

He was arrested again Feb. 15 at a DUI roadblock near Vinings. He refused a blood-alcohol test, but was ticketed based on a field sobriety test and a police officer's assessment that he had a strong odor of alcohol and slurred speech.

Graves said he had just left a dinner meeting with other legislators and should be allowed to claim immunity from arrest because the General Assembly was in session.

Georgia has had the immunity provision in its constitution since 1789, but legal experts said they believed Graves might have been the first legislator to use it in a criminal case. Many states enacted such laws at the time to keep legislators from being arrested by powerful political rivals.

Glover rejected Graves' argument and GOP leaders distanced themselves from his strategy, saying legislators should not consider themselves above the law. Graves, who had been advised by his attorney's advice to take the immunity argument to the state Supreme Court, withdrew that appeal.

Graves stepped down as chairman of the House Regulated Industries Committee, which has oversight over legislation governing the liquor industry.

In addition, Graves, a pharmacist, faces possible disciplinary action by the Georgia State Pharmacy Board. The board had been waiting for his criminal cases to conclude and could suspend or revoke his license, said Kara Sinkule, a spokeswoman for the secretary of state's office, which has oversight over licensing.

Meanwhile, state Rep. Rob Teilhet (D-Smyrna) pre-filed legislation Tuesday calling for a constitutional amendment to do away with the legislative immunity provision.

http://www.ajc.com/news/content/metro/cobb/1105/16metgraves.html