Fossella Ordered to Spend Five Days in Jail

Posted December 8, 2008 at 3:07pm

Rep. Vito Fossella (R-N.Y.) was sentenced to five days in jail for driving with a blood alcohol content that was more than twice the legal limit.

Virginia District Judge Becky Moore directed Fossella to show up for incarceration on Dec. 19. Fossella’s incarceration, however, is likely to be delayed since his attorneys said they have already filed an appeal, which will allow Fossella to have a jury trial.

Moore ruled Monday that Fossella is guilty of driving with a blood alcohol content of at least 0.15, a charge that carries a 180-day sentence with a minimum of five days in jail.

Fossella’s attorney, Barry Pollack, said after the hearing that they look forward to a trial by jury and there is “every reason to doubt” that Fossella’s blood alcohol content was above 0.15 percent. “We look forward to that next step,” Pollack said.

Fossella also must pay a $300 fine and complete the Alcohol Safety Action Program.

His license will also be suspended for a year in Virginia, although Moore said he could drive with a restricted license if his car is equipped with an “ignition interlock device.”

Moore’s ruling came after a two-hour sentencing hearing, where Fossella’s attorneys argued that the breathalyzer he took was unreliable and full of software glitches.

Fossella took the test on an Intoxilyzer 5000 almost three hours after he was pulled over on May 1. According the the computer, his blood alcohol content was 0.17, more than twice the legal limit of 0.08.

During a seven-hour trial in October, Fossella’s attorneys tried to establish that Fossella only had a couple of glasses of wine on April 30, questioning a line of witnesses on his demeanor that night. Prosecutors, meanwhile, relied on the testimony of police officers and the results of the breathalyzer.

At the end of that trial, Moore ruled that Fossella was guilty of driving while intoxicated, but delayed ruling on his blood alcohol content until today’s sentencing.

Fossella was originally arrested May 1, after a police officer pulled him over for running a red light. He will retire at the end of the 110th Congress, after the arrest led to revelations that he fathered a child in an extramarital affair.