ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Wednesday, March 27, 1996 TAG: 9603270059
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
DATELINE: RICHMOND
SOURCE: DAVID M. POOLE STAFF WRITER
DRUNKEN DRIVING, the judge ruled, breaches the peace. Besides, the law protecting legislators from arrest really doesn't apply. A judge on Tuesday rejected a bid by a House of Delegates aide to beat a drunken-driving charge by invoking a 19th century law aimed at shielding lawmakers and some aides from imprisonment during assembly sessions.
Pennelope Q. Cabaniss, 24, was found guilty of drunken driving for the second time in five years and was sentenced to 10 days in jail.
The case renewed scrutiny of the arcane immunity statute and increased the likelihood that some lawmakers will seek to clarify it next year to erase any impression that they or their staffs are above the law.
``That is a real concern we all share,'' said Del. Samuel Nixon, R-Chesterfield County.
R.J. Smith, the Henrico County officer who arrested Cabaniss Feb. 10, said he caught a state legislator speeding last month but let him go because of the immunity statute. Smith declined to name the lawmaker, who he said was a member of the House of Delegates.
``I disapprove of it,'' Smith told reporters. ``I don't think anyone in that position should be above the law.''
The statute has its roots in English history, when kings would try to disrupt Parliament by rounding up representatives and throwing them into prison.
In the United States, the founders accorded members of Congress the privilege against arrest. Most states have similar protections aimed at preventing the detention of state lawmakers during legislative sessions.
Virginia's statute, which dates from at least the Civil War era, states that General Assembly members, clerks and their assistants cannot be ``taken into custody or imprisoned'' during assembly sessions except for treason, felonies or breach of the peace.
Because the scope of the law has not been tested in court, local police and prosecutors follow different interpretations.
Last month, Richmond police charged Del. Robert Nelms, R-Suffolk, with indecent exposure and summoned him to appear in court after the assembly adjourned March 11. But police in Henrico and Chesterfield counties say the law bars them from giving lawmakers and others routine speeding tickets.
Confusion over the law opened the door for the novel defense in the Cabaniss case.
Cabaniss, an assistant clerk who compiles a daily House of Delegates journal, was arrested Feb. 10 after she swerved across three lanes of Interstate 64, Smith said. He clocked her driving 83 mph in a 55 mph zone.
Smith said Cabaniss had trouble standing when she got out of her car. Her blood-alcohol content later was determined to be 0.25 percent, more than three times the legal standard for intoxication.
Her attorney, L. Neil Steverson, conceded Tuesday that his client was intoxicated, but argued that her arrest was invalid because the General Assembly was in session.
``We all took an oath to follow the law, even if we don't like where it leads us,'' Steverson said.
Ted Bruns, an assistant Henrico County prosecutor, countered that Cabaniss had no privilege from arrest because drunken driving constituted a breach of the peace.
General District Judge Gary Hicks rejected the defense theory, saying that Cabaniss' actions behind the wheel of a car was a clear breach of the peace.
Hicks also cited the historical origins of the law.
``I don't think it was meant to be a sword to protect those in this category from prosecution,'' he said.
After the hearing, Steverson said he would like to appeal the ruling, but that Cabaniss was anxious to step out of the media spotlight created by her defense strategy.
``If I had my way, I'd take it all the way to the court of appeals,'' Steverson said.
Some lawmakers say Steverson's theory ignores the law's clear historical intent.
Del. Jay DeBoer, D-Petersburg, said he is amazed some law enforcement officers think the law prevents them from citing lawmakers for speeding while the assembly is in session. ``They're being more polite than they need to be,'' he said.
The Associated Press contributed information to this story.
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