Smith is out on bond tonight, he's now charged with multiple felonies including assault and firearms counts.
Police say he opened fire on his ex-wife early Sunday morning, hitting her car - but his defense attorney claims his ex-wife was the aggressor, not his client.
Smith - now defendant Virgil Smith - was charged with felony firearm, felonious assault, malicious destruction of property and domestic violence.
Police say he shot up his ex-wife's Mercedes-Benz after she showed up at his house at 1 a.m. Sunday and found him naked with another woman in his bed and the ex-spouses started fighting.
Smith's attorney defended his client's actions.
"We certainly have a situation here where the complainant is obviously the aggressor in this situation," said attorney Godfrey Dillard. "The defendant was at his home when these events happened, and that the complainant forced her way into his home and attacked the defendant as well as the other person that was in the house with the defendant."
But it's clear prosecutors believe otherwise given the charges.
FOX 2 legal analyst Charlie Langton tells says that felony firearm charge should he be convicted, - carries a mandatory sentence.
"You can't use a gun and commit a crime," Langton said. "If you do, it's an automatic two years in prison. and the judge has no discretion if he's convicted of that."
Langton also questioned why Smith wasn't charged with attempted murder. According to the police report he allegedly shot at his ex-wife as she ran from the house.
"If the senator was shooting the gun at this woman, that could be attempted murder," Langton said.
But Prosecutor Kym Worthy released a statement reading:
"The alleged actions of Senator Smith cannot and will not be tolerated. We asked for further work on the warrant and the information was received this morning. We let the facts and evidence guide our charging decision and nothing else."
Smith's bond was set at 25,000, 10 percent and paid immediately. He was ordered to have no contact with his ex-wife.