Legislative Immunity from DUI?

Arizona Senate majority (Republican) leader, Scott Bundgaard got into a dustup involving a fight with his girlfriend on the side of the road, a gun, and drinking and driving. This occurred on February 25, 2011; on their way home from some sort of charity function.

Over the period of time between then and March 24th he claimed repeatedly that the police report will reveal that, among other things, that he did not seek legislative immunity, and that he was “stone cold sober”… “The final police report, released Thursday, largely contradicts his story”. Senate GOP unsure about Sen. Scott Bundgaard’s story, future

There are loads of salacious details and questions but I am mainly concerned with the drinking/driving aspect, and how legislative immunity works.

Well, the full report was released Mar 24.  Arizona Republic Witnesses: Bundgaard assaulted girlfriend:

Bundgaard has said that he told police he was a state senator. But he has repeatedly said he never invoked his legislative immunity from arrest. Several officers at the scene, however, said Bundgaard cited a provision in the state Constitution that allows lawmakers to avoid arrest during legislative sessions except in cases of felony, treason and breach of the peace.

(Phx PD officer) Rodarme said that as soon as he introduced himself to Bundgaard, the senator said: “I demand you take these handcuffs off. I’m state Senator Scott Bundgaard, and according to Article 4 of the Constitution, you cannot detain me. I’m immune from arrest when the Legislature is in session, in which it currently is.”

Shortly thereafter, Bundgaard, who called his sister from the freeway, was released and drove home with his family. Ballard (the girlfriend) was booked into jail.

…  Bundgaard has said Ballard was drunk and that he had not been drinking. He told police he had “one sip of wine” that evening.

Rodarme observed otherwise, writing, “I smelled alcohol on his breath.” He said he asked Bundgaard how much he’d had to drink.

“I did not drink tonight,” Bundgaard replied, according to the report. Rodarme asked him to take a field-sobriety test or breath test. Bundgaard refused, according to the report.

Arizona’s implied-consent law permits officers to demand blood-alcohol testing if there is probable cause to believe a person was behind the wheel while impaired. But a police spokesman said Thursday that officers at the time did not believe they had probable cause to force Bundgaard to submit himself to such a test because they had not observed Bundgaard driving, much less in an erratic way.

Bundgaard said in an interview Thursday with 12 News that when asked to take the test, “I said ‘no’ because I had not been drinking.” Ballard, however, told police that she saw Bundgaard drinking at the social event…

“I then told him, ‘I’ve been doing this job for 12 years, and I know you have been drinking because I could smell it on your breath,’ ” Rodarme wrote.

It seems clear now in the light of the full police report that Bungaard lied about not invoking legislative immunity; and also lied when he said he had nothing to drink. Was he drunk? We’ll never know. I believe had it been anyone else (not a legislator), the police would have found a way to get a warrant to draw blood — they don’t take kindly to refusals to undergo field sobriety tests.

Legislative Immunity

I’m not sure how many states have this, but Arizona is one of them. The idea is to prevent your political enemies from using arrest to muck up legislative duties. Note that it only applies to arrest, not prosecution. It is generally agreed that anything can be prosecuted, it just needs to be delayed until the legislature is out of session. Beyond that there is a wide variety of opinions about what sorts of things the immunity applies to, e.g. there are some US Supreme Court decisions on the topic.(Laurie Roberts column) that says “”.  Others argue those cases don’t apply to states, only federally.

in 1908 in Williamson vs. United States and again in 1934 in Long vs. Anshell, the U.S Supreme Court held that legislative immunity applies only to an arrest in a civil suit. “When the Constitution was adopted, arrests in civil suits were still common in America,” the court wrote in 1934. “It is only to such arrests that the provision applies.”

Blast from the past

Bundgaard’s claim that he did not invoke legislative immunity, as well as the drinking and driving and refusal to undergo field-sobriety testing sound ominously familiar to a story told by (now Govenor) Jan Brewer in May 4, 1988,when she herself was a state legislator. She had been drinking / driving and rear-ended another vehicle. The DPS officer believed she was intoxicated, even writing her a citation; however she was never charged. According to Brewer, a DPS lieutenant simply sprung her, i.e. that she had legislative immunity foisted upon her.

Back in 2007, legislator Trish Groe (R-Lake Havasu City) didn’t claim immunity and plead to a DUI.

Updates

Bundgaard was charged with misdemeanor assault in connection with this incident in June 2011