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N.Y. Congressman Gets Five Days in Jail for DUI

By Christian Davenport
Washington Post Staff Writer
Tuesday, December 9, 2008

U.S. Rep. Vito Fossella, the New York congressman whose political career fell apart after a DUI arrest in Alexandria led to revelations that he fathered a child in an extramarital affair, was sentenced yesterday to five days in jail.

Fossella, who was convicted of driving under the influence in October, had said he made a mistake when he drove after drinking. During yesterday's hearing, he tried to convince General District Court Judge Becky J. Moore that his blood-alcohol level could not have been above 0.15, the level at which jail time is mandatory.

A breath test after his arrest indicated that he had a blood-alcohol level of 0.17, more than twice the legal limit, according to police. Fossella's attorneys claimed that the machine used to measure his blood-alcohol level had a "software glitch" and that the congressman did not appear inebriated in the hours before he was arrested.

Immediately after the verdict, Fossella, 43, appealed the decision and left the court in Old Town Alexandria without talking to reporters. The maximum penalty on the misdemeanor charge is one year in jail.

One of his attorneys, Barry Pollack, said that the hearing was "the first step in a lengthy process" and that "we look forward to taking that next step."

Fossella, New York City's lone Republican congressman, was pulled over shortly after midnight May 1 after an Alexandria police officer said he observed him running a red light at Seminary Road and Library Lane. Fossella told the officer that he was going to visit his sick daughter. That led to the revelation that he had fathered a child out of wedlock with retired Air Force Col. Laura Fay. Fossella is married with three children who live in Staten Island.

After his arrest, Fossella announced that he would not seek reelection. He did not take the stand yesterday.

During his October trial, Fossella testified that he had been at a White House reception April 30 to celebrate the New York Giants' Super Bowl victory. Later, he went back to his Capitol Hill office and cleaned his hands with Purell, a hand sanitizer that is more than 60 percent ethyl alcohol.

The alcohol in the hand sanitizer led to his elevated blood-alcohol reading, his attorneys said. Fossella said he went to a private dinner at Bobby Van's Steakhouse in the District about 8 p.m. and drank not quite two glasses of wine with dinner. He sipped a third at the bar afterward, he said.

About 10 p.m., he went to Logan Tavern with a friend who is a Secret Service agent, he said. The friend was so drunk he fell face first into a table, breaking it, bar employee Alexander Castro testified yesterday. But Fossella did not appear intoxicated, said Castro, the only witness to testify.

The men were asked to leave the restaurant. In pre-sentencing arguments, Fossella's attorneys wrote that Fossella drove his friend to his office in the District and then went straight to Virginia.

At the time of his arrest, he registered a 0.13 blood-alcohol level. He was taken to the Mount Vernon police station in Fairfax County, and police there tried to give him another blood-alcohol test nearly three hours later. Initially, Fossella "claimed he was not able to perform the test and threatened to defecate on the floor of the police station if he was not allowed to use the restroom," Assistant Commonwealth's Attorney David Lord wrote in a pre-sentencing document.

In that test, he registered a 0.17, police said. During the hearing yesterday, defense attorneys argued that the second device, known as Intoxilyzer 5000, had a "software glitch" that led to the elevated reading.

They said the machine twice omitted letters of the name of the officer operating the machine. "Something happened to that machine," attorney Jerry Phillips said. "It left out a letter. It could have been a number."

They also argued that there was no way the level could have risen from 0.13 to 0.17 in between tests because "the alcohol level dissipates over time."

Lord argued in pre-sentencing documents that the machine that registered the 0.13 "does not have so high a degree of scientific reliability that it can be used to determine a specific" blood-alcohol content. It is a preliminary test used "for determining the presence of alcohol in a suspect's system."

The machine that registered the 0.17 was working properly, he argued, and "presents results that are scientifically accurate and reliable for determining a specific" blood-alcohol content.

The rise in alcohol in the blood could also be the result of "slamming" drinks in rapid fashion, he said.

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