Del. Chris Hurst, D-Montgomery, speaks on the House floor in July. (Ned Oliver/ Virginia Mercury)

When is a drunken-driving arrest not really a drunken-driving arrest?

When a Virginia legislator is behind the wheel — and the General Assembly happens to be in session. Del. Chris Hurst, D-Montgomery, knows all about it. 

A traffic stop involving the delegate has shed some light on a little-known section in the state Constitution. An expert on Virginia’s document, by the way, tells me many other states, as well as the feds, have similar clauses. 

Such passages are worth re-visiting, especially in the commonwealth. Lawmakers shouldn’t get a pass for their own irresponsible actions that fall short of serious crimes or injuries. 

But I’m getting ahead of myself. 

Hurst represents the 12th House District, which includes parts of Giles, Montgomery and Pulaksi counties and Radford. A Christiansburg town police officer had pulled him over around 2 a.m. Jan. 26, saying the driver had been swerving and speeding. 

The officer noticed Hurst’s eyes were red and smelled alcohol from within the car. The officer then did field sobriety tests before conducting a portable, field breath test. Hurst’s preliminary blood alcohol content was .085, just over the legal limit.

The officer let Hurst leave with a warning, figuring an admissible BAC test taken at the police station would’ve been under the legal limit. Hurst’s companion in the car then drove off. 

A municipal statement later noted that neither Hurst nor the officer — who officials said “is highly experienced in DUI detection and enforcement” — mentioned that Hurst is a delegate during the incident. The constitutional clause could have been in play, too, making it unlikely charges would’ve stuck. 

Article IV, Section 9 states that General Assembly members shall “in all cases except treason, felony, or breach of the peace, be privileged from arrest during the sessions of their respective houses.” It adds that legislators “shall not be subject to arrest under any civil process.”

Drunk is drunk, however. You or I wouldn’t be entitled to such judicial generosity.

Hurst later released a statement of his own, saying he had “made a grave mistake that rightfully has some of you questioning my judgment.” He admitted he shouldn’t have been drinking and driving.

Alluding to the constitutional clause, Hurst added: “I don’t agree that I should be immune from prosecution when warranted. I never avoid responsibility and accept the consequences of my actions. I am not above the law.”

That’s a smart response, given the deaths, injuries and grief that drunken driving causes. In 2018, the Department of Motor Vehicles reported 7,181 alcohol-related crashes, with 278 fatalities and 4,475 injuries.

The larger issue, though, is why this curious clause in the state Constitution still exists. It allows a double standard for legislators.

A.E. Dick Howard, who oversaw the rewriting of the Virginia Constitution a half-century ago, disagrees. “It’s an important provision,” said Howard, though he acknowledges it might strike some people as odd. 

He told me the origin dates to the 17th century, when English kings were using various techniques to intimidate members of Parliament. “The principle at stake is so important it justifies these immunities,” said Howard, who at age 86 is still a fulltime professor at the University of Virginia School of Law.

It’s a hard sell. The clause encourages bad behavior without penalty, all because 140 people won the previous election.

That’s probably why state Sen. Bryce Reeves, R-Spotsylvania, introduced a resolution amending the clause. The Fredericksburg Republican’s proposal would limit the immunity that legislators now enjoy. It has many steps to passage.

You have to start somewhere, however. 

Driving under the influence of alcohol or drugs is a scourge, regardless of who’s at the wheel. Avoiding sanction is an anger-inducing message to millions of residents around the commonwealth.