Smith was quite distraught over this, and by this I don't mean the DUI itself but the fact that he was arrested at all. His attorney is using an obscure law that was written in the 1800s to get his client off that says:
"The members of the General Assembly shall, in all cases except treason, felony, breach or surety of the peace, be privileged from arrest during their attendance on the sessions of their respective Houses".
In other words, as long as Smith doesn't commit a serious crime, he can pretty much do anything he wants while the General Assembly is in session. Since the dumbass got wasted on the opening day of the KY legislature, Jan. 6, he could get off scott-free.
The law was written in the 1890s, the days of the old West, to keep unscrupulous people from preventing legislators from passing laws. It assuredly had nothing to do with shielding a disingenuous lawmaker from drinking and driving--especially since cars hadn't been invented yet.
If the judge applies the law, then I would think that he would simply be tried after the session. I really doubt that this law can be the magic bullet that Smith thinks it is to allow lawmakers to drive drunk, shoplift, or expose themselves.
However, other "experts" disagree with me and think he may end up getting off completely. Even so, Smith has infuriated his constituents--even his conservative ones, by not owning up to his actions. No one likes seeing privileged people getting away with crime (unless you live in Florida).
The GOP in Kentucky are amateurs. If you want to make it so that lawmakers can get away with misdemeanors, like taking bribes or shooting up a neighborhood, just legalize it. That's how we roll in the Sunshine State, anyways.