ATLANTA - State Rep. David Graves, charged with drunken driving for a second time, was denied by a judge Tuesday in his contention that his position as lawmaker means he cannot break the law while the Legislature is at work.

Mr. Graves, a Macon Republican, tried to use 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 the General Assembly's 2005 session.

Cobb State Court Judge Irma B. Glover denied the request to use the "legislative immunity" defense.

Mr. Graves' attorney, William C. "Bubba" Head, immediately filed a motion to appeal the decision to the Georgia Supreme Court.

Mr. Graves - the chairman of the House committee overseeing laws governing the alcohol industry - has said that on Feb. 15, he and other committee chairmen went from the Capitol to a dinner meeting, where they conferred about the status of legislation and plans for the next legislative day.

His lawyer argued that Mr. Graves should have been granted immunity from arrest because he was leaving a gathering that was tantamount to a committee meeting, according to legal filings.

Gary Jones, the assistant solicitor in Cobb State Court assigned to prosecute Mr. Graves, argued against the defense.

Judge Glover ruled there was no evidence to support that the gathering was an official committee meeting.