Attorneys for Kentucky Senator Brandon Smith have filed a motion to drop DUI charges against him.

They argue the charges should be dropped because the state constitution doesn’t allow lawmakers to be arrested during the legislative session.

“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.

Officers arrested Smith January 6, the first day of the 2015 session. He was 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.

The Republican from Hazard blew a .088 in a portable breath test, according to the arrest report. That’s slightly above the legal limit.

RAW Story adds:

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.

“There are two sides to every story,” said Senator Smith shortly following his arrest. “I’ve never been arrested my whole life, I’ve never been in any kind of trouble. You just can’t all of the sudden change overnight.”

“Stuff like this is sensational and it makes news. It’s not very comfortable for our families but we don’t really get to choose that,” Smith explained. “I have a guy who is going to help me go through the legal side of it and says that the best thing to do is to be quiet and it’s difficult.”

Smith has voted against a bill that would have expanded alcohol sales in the state, according to

A judge agreed to consider the motion and delayed the case.

Smith, who is from Hazard, represents Senate District 30, which covers much of southeastern Kentucky.

Kentucky Senator Brandon Smith