The attorney of a Kentucky legislator accused of diving under the influence is attempting to use as a defense a provision of the state constitution giving lawmakers immunity during legislative sessions.

The Associated Press reported that the attorney recently filed a motion in the Franklin County Court to dismiss a DUI charge against state Sen. Brandon Smith, a Hazard Republican, under section 43 of the state constitution, which states that lawmakers cannot be arrested while the General Assembly is in session.

Section 43 reads as follows:

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.

Stephen Voss, a political science professor at the University of Kentucky, said the constitutional provision was written at a time when lawmakers were worried about powerful figures detaining them in order to meddle with the lawmaking process.

He said the concern stemmed from incidents when kings would refuse to call a parliament into session, or lock up parliament members, for fear of opposition.

“Just terrible abuses of democracy,” Voss said. “The basic fear was that the legal system could be abused to keep the people’s representatives from doing their jobs.”

State Senate President Robert Stivers, a Republican from Manchester, said Smith shouldn’t be immune from the law, but he emphasized that Smith is innocent until proven guilty.

“No member of the General Assembly is above the law,” Stivers said in a statement. “While Kentucky’s Constitution does provide for a limited form of legislative immunity, as does the United States Constitution and most state constitutions, it is clear that the immunity does not apply in this situation.”

Gov. Steve Beshear said he hasn’t reviewed the constitutional provision and declined to provide his own interpretation of the law.

“That decision’s going to be a judicial decision of interpreting the Kentucky constitution, and I’m going to leave it up to the courts,” Beshear said.

Ryland Barton is the Managing Editor for Collaboratives.