Graves, a Republican from Macon, Ga., is citing a centuries-old provision in the state constitution to argue that he should not be prosecuted for a DUI he received in Cobb County in February. The arrest was made during Georgia's 2005 session of the General Assembly.
Cobb State Court Judge Irma B. Glover was expected to issue a ruling Tuesday on Graves' ``legislative immunity'' defense. His trial also was expected to begin Tuesday.
The provision, which dates back to 1789 and was written to protect lawmakers from political intimidation, holds that a lawmaker cannot be arrested during sessions of the General Assembly, legislative committee meetings or while they are in transit. It does allow arrests for ``treason, felony, or breach of the peace.''
Graves, the chairman of the House committee that oversees laws governing the alcohol industry, has said that on Feb. 15, he and other committee chairmen went from the state Capitol to a dinner meeting.
His lawyer, William C. ``Bubba'' Head, argued in legal filings that Graves should have been granted immunity from arrest because he was leaving a gathering that was tantamount to a committee meeting.
Graves said the lawmakers conferred about the status of legislation and plans for the next legislative day at the dinner meeting.
But Gary Jones, the assistant solicitor in Cobb State Court assigned to prosecute the case, said his office is fighting the contention.
``Just because you're having dinner with other politicians doesn't make it a committee meeting,'' Jones said. ``They could be at a casino doing the same thing, and he could allege it was a committee meeting, even though they're gambling. Only in this case, they were drinking which to me is another indication it was not a committee meeting.''
Graves also is awaiting trial on another DUI charge from March 2004, when authorities said he ran a red light. If convicted on one or both charges, Graves could face fines, jail time and perhaps the loss of his House committee chairmanship.
The history of legislative immunity laws includes a 17th-century incident in Virginia in which the royal governor arrested a lawmaker to keep him from voting, according to the Norfolk Virginian-Pilot newspaper.
In recent years, legislators and staffers have tried to use immunity laws to defend themselves against nonpolitical charges.
A Virginia judge rejected a legislative aide's immunity claim and convicted her of drunken driving in 1996. Courts rejected in 2002 a Wisconsin senator's attempt to use the provision to shield himself from charges of illegally raising campaign contributions.
In Georgia, then-state Attorney General Michael Bowers issued a 1985 legal opinion that the provision in the constitution might give legislators immunity from physical arrest.
But, he concluded, ``There is no constitutional immunity for members of the General Assembly from prosecution for speeding violations or other violations of criminal law.'