Prosecutors Want Fossella to Serve Five Days in Jail

Posted December 1, 2008 at 4:10pm

Prosecutors have formally asked a district judge to sentence Rep. Vito Fossella (R-N.Y.) to 180 days in jail for drunken driving, with all but five days suspended.

In a “sentencing memorandum” filed Monday, assistant commonwealth attorney David Lord argues that Fossella should serve five days in prison, with 175 days suspended on the condition of a year of “good behavior.”

Five days is the mandatory minimum sentence for someone convicted of driving while intoxicated with a blood alcohol content of 0.15 or higher. When Fossella was arrested on May 1 in Alexandria, Va., a subsequent test found his blood alcohol content to be 0.17 — more than twice the legal limit for driving.

However, Fossella has so far only been convicted of the basic driving while intoxicated charge. Judge Becky Moore delayed ruling on Fossella’s blood alcohol content until the Dec. 8 sentencing.

Barry Pollack, one of Fossella’s attorneys, said he had not yet seen the memorandum. But, he said, arguments on sentencing are “premature” when the court hasn’t yet ruled on whether Fossella had a blood alcohol content of 0.15. The evidence, he said, “doesn’t support that.”

During his Oct. 17 trial, Fossella’s attorneys argued that the breathalyzer was inaccurate. For several hours, they questioned a long line of witnesses on the machine’s accuracy and on Fossella’s character.

But in his 11-page memo, Lord argues that the Intoxilyzer 5000’s reading was accurate and within the scientific margin of error. Thus, he writes, Fossella should spend five days in jail, along with a one-year period of “good behavior.” He also requests that Fossella complete the Alcohol Safety Action Program, pay $300 in fines and only get a restricted license if his car is equipped with an “ignition interlock device.”

The conviction stems from an arrest on May 1, when an Alexandria police officer stopped Fossella after watching him run a red light at about midnight.

That incident prompted revelations that Fossella had an extramarital affair with Air Force officer Laura Fay and was the father of her daughter. Soon after the news broke, Fossella announced his decision to retire at the end of the 110th Congress.