Kentucky state Sen. Brandon Smith’s (R) lawyer argued in court on Wednesday that he should not be charged with driving under the influence because of a provision in the state constitution, WKYT-TV reported.

Smith was arrested on Jan. 6, the opening day of the legislature, and charged with speeding and a DUI after allegedly blowing a .088 on a preliminary breath test. He was also reportedly caught driving at 65 miles per hour in a 45 mph zone.

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But attorney Bill Johnson filed a motion to drop the charges saying that, according to Section 43 of the state constitution, Smith should not have been arrested in the first place.

“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,” the section reads.

Johnson told the Associated Press that the provision was added to state law in 1891 to “keep legislators from being bothered by people who would arrest them during sessions.”

As the Frankfort State-Journal reported,authorities said that Smith refused to take an official breath test after being taken to jail.

However, Johnson said that his client was “told that he had ‘refused'” after trying to reach him on the jail’s phone for 15 minutes and failing because the phone did not work.

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Under state law, Smith’s driver’s license would be revoked if he refused to take a test. But Johnson requested that Smith keep his license until a decision is reached on his motion to dismiss the charges. The senator’s next court appearance is scheduled for Feb. 12.

Watch WKYT’s report, as aired on Thursday, below.

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[h/t Countercurrent News]