Nobody wants to be pulled over by the police on suspicion of driving under the influence.
If you’re a politician, that desire is surely less.
And that brings us to the case of Del. Chris Hurst, D-Blacksburg, who recently had that unfortunate experience.
Just in case anyone has been off the grid for the past week or so, here’s a brief recap of what we know: Early in the morning of Jan. 26, a Christiansburg police officer witnessed a car swerve multiple times on U.S. 460. He pulled over the driver, who happened to be Hurst. He admitted he’d been drinking. He voluntarily agreed to a breathalyzer test — and blew .085%, a little bit above the .08% blood-alcohol level at which a driver is presumed to be under the influence. He also went through several other tests — such as counting backwards, which he did correctly. The officer then let him go, with instructions that Hurst’s passenger — who blew under the legal limit — drive to a nearby Walmart and hang out there awhile before continuing on their way.
Dashcam video shows that at no time did Hurst identify himself as a state legislator and, unlike many legislators, his car does not have special license plates that indicate he’s a member of the General Assembly. However, Lt. Stephen Swecker recognized him — and also knew the state constitution grants legislators certain immunity while the General Assembly is in session. That’s where Hurst’s case becomes a lot more interesting, and not just because we’re fascinated by the English common law antecedents of that constitutional provision that dates back to the days when kings would conjure up some excuse to keep parliamentarians from making their way to London.
We’re not here today to lecture Hurst on the evils of drinking and driving — those on social media have done that quite effectively. Just in case there’s any doubt, we concur — drinking and driving should not be tolerated. However, we’re here today to look at something else — the politics of Hurst’s situation. Namely, would Hurst have been better off politically if he had been charged with driving under the influence? That would have been an embarrassment, for sure — but, ironically, getting stopped but not getting charged is also proving an embarrassment for Hurst, as well, because of the widespread belief that he got off easy because he’s a politician.
Let’s look at the former option — getting charged. There’s a long, long, long list of politicians who have faced a DUI charge. So long in fact that the website alcoholproblemsandsolutions.org has a special section devoted simply to a list of such politicians. In most cases, where the politician in question sought re-election, voters seemed to be in a forgiving mood and re-elected them. One Missouri legislator who pleaded guilty to both drunken driving and child endangerment — because he had his 4-year-old daughter in the car — was later elected a judge. A DUI conviction certainly has not meant the end of most politicians’ careers — unless it’s accompanied by some other transgression, such as the Maine legislator who in 2010 rolled his car on the highway. He lost his re-election bid. On the other hand, a Kentucky legislator who in 2001 hit two parked cars got re-elected. For what it’s worth, that website believes that any legislator arrested — not convicted, but simply arrested — for drunk driving should resign, a much stricter standard than voters have applied.
Curiously, the immunity clause has come up before, just not here: In 2005, a Georgia legislator was charged with DUI, his second charge in a year. Georgia’s constitution has the same immunity provision that Virginia’s does — and that legislator tried to cite that to his advantage in court. The judge was not impressed, ruling that when the legislator was stopped he was leaving a private party, not a legislative meeting, so the immunity clause didn’t apply. (That logic, by the way, would not exempt Hurst, either). The Georgia legislator was convicted, and resigned from office. In that case, the legislator’s invocation of immunity proved to be a bigger political problem than his multiple DUI charges.
Here, Hurst did not invoke immunity or any special status. Instead, Christiansburg police relied on their interpretation of the state’s Constitution. That’s not how other police have interpreted it, though. In 2001, state Sen. Tommy Norment, R-James City County, was charged with DUI by state police while driving home from a legislative session. He apologized in a speech to the state Senate, and was praised by Democrats and Republicans alike. “If all the politicians that find themselves in some kind of trouble follow the example set by Sen. Norment today on the floor of the Senate, the people’s opinion of politicians will be much improved,” state Sen. Madison Marye, D-Shawsville, said at the time. Norment faced no voter backlash, winning re-election five times since. He went on to become Majority Leader when Republicans controlled the state Senate and now is Senate Minority Leader.
What if Christiansburg police had interpreted the constitution the way state police did with Norment? Field breathalyzer tests are inadmissible in court. The official statement from the Town of Christiansburg pointed out that Hurst’s blood-alcohol level was so close to the limit in the field test that even if Hurst had been taken to the magistrate’s office for a formal test, he might well have been below the legal limit by then. Nonetheless, the fact that Hurst wasn’t charged looks bad — for both him and Christiansburg police. Will that prove to be the bigger political problem? Even without a DUI charge, Hurst suffers all the embarrassment of one because of the breathalyzer test results — but also now has the additional problem that it looks like he’s above the law, even if he didn’t ask to be. He got the advantage of immunity, even if he didn’t claim it.
There’s no way Hurst can undo the facts, but here’s a way to extricate himself from the political problem: He could ask to be charged. Present himself to police and offer to waive any immunity and plead guilty. Yes, there’s a certain amount of showboating to that, because legally speaking, there’s no admissible evidence here. What happens if someone offers to be charged when there’s no evidence? Lawyers can figure that one out, and ultimately voters will figure out Hurst’s fate. In the meantime, here’s a way he can show he really isn’t above the law.