Don't legislate DWI immunity rules — just clarify them

  • Article by: Ron Latz and Scott Newman
  • April 24, 2014 - 6:48 PM

Despite what you may have read in recent newspaper headlines (“No ‘privilege’ for lawmaker DWIs,” editorial, April 7) or seen on television newscasts, Minnesota lawmakers are not immune from DWIs or privileged from arrest for any criminal conduct. Nor should they be. The law is clear, even if the Minnesota Constitution’s language is outdated.

If there is confusion about whether legislators are subject to arrest for drunken driving, perhaps it is time to consider eliminating the “privilege from arrest” language from lawmakers’ wallet-sized identity cards, or at least clarify its meaning. However, legislation is not called for.

The U.S. Supreme Court (on at least two occasions going back over 100 years), three state supreme courts and at least 15 state attorneys general have stated that the so-called “privilege from arrest” provisions in the U.S. Constitution and many state constitutions apply only to civil, not criminal, arrests. Civil arrests were a common practice 200 hundred years ago and were occasionally used by kings and executive branch leaders to block legislators from getting to a vote or to arrest them for something said during their duties as an elected official. A contemporary example of a civil arrest would be for contempt of court.

Our own attorney general agrees that the privilege from arrest does not apply to criminal conduct. In a recent opinion, Minnesota Attorney General Lori Swanson concludes: “If the Minnesota appellate courts were presented with the issue, it is highly likely they would adopt the majority view set forth in modern cases and find no legislative privilege from arrest for DWIs or other criminal activity under the Minnesota Constitution.”

So why the misbelief that the Minnesota Constitution (Art. IV., Sec. 10) applies to DWIs and other criminal conduct? Because of widespread public attention given to the misinterpretation of the constitutional language and because of the antiquated language itself. And because of its distribution on a special card to state legislators and its rare misuse by a few of them.

If the perceived problem is not the law itself, but rather the lack of knowledge and education of the users of the law and the public, what is the remedy? Should we pass a statute repeating what the law already means? To us, that is not an appropriate use of the legislative process.

It was this analysis and the legal conclusion that the law already allows criminal arrests that led to bipartisan agreement on the Senate Judiciary Committee, after a lengthy and vigorous public hearing, to almost unanimously table the bill proposed on this topic. The bill is not a clarification; it is a redundancy, and it raises the additional complication of passing a statute purporting to clarify or interpret constitutional language. This is the purview of the courts, not the Legislature.

There is a simple solution: educate everyone on the actual law. The secretary of state should issue new cards to all legislators either not containing the language at all or stating clearly that it does not apply to criminal acts, including DWIs. The Peace Officer Standards and Training (POST) Board should partner with the sheriffs, police chiefs, county attorneys, and police and peace officer associations to train and educate their members on what the law really means. New legislator training should make clear that this is not a “get-out-of-jail-free” card. On the contrary, if you drive drunk, you will be arrested, and falsely claiming immunity from arrest should lead to an ethical complaint in the House or Senate.

Passing another law rephrasing what is already the law will do little to change the status quo. If the goal is to ensure that all drunken drivers get arrested and, in the words of Attorney General Swanson, “to give additional direction to legislative members, the public, law enforcement and the courts,” then education is the real solution.


Ron Latz, DFL-St. Louis Park, and Scott Newman, R-Hutchinson, are members of the Minnesota Senate.

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