Old provision in state constitution not bright-line rule to stop lawmaker arrests
Nebraska senator Mike McDonnell now faces four charges, one of them is a supscion of driving under the influence.
Some, though, question whether he should have been taken to jail after the incident based on a 19th century provision in the state constitution.
"It's entirely possible that a suspicion of DUI could fall under one of the exceptions," said Bonnie Moore, the chief deputy Sarpy County attorney.
She says while there's no hard and fast rule, if the DUI is considered "breach of the peace" McDonnell could be arrested.
The Nebrasks State Patrol told us in email:
"Courts in many jurisdictions have explicitly defined dui as a breach of the peace...."
In the past, some state senators who got into trouble with the law during session were not actually detained.
Court documents show in 2013 state senator Scott Lautenbaugh got a ticket for DUI, but he didn't go to jail.
So where does this old state constitutional provision come from?
"Think back to 1875 and reasons why maybe someone would be arrested would be to prevent them from voting, which is likely this is the reason why this was included in the Nebraska constitution," said Moore.
By law, McDonnell won't be prosecuted until the session ends in mid-April.