N.Y. Congressman Convicted of DUI
Whether Jail Required Up to Va. Judge
Saturday, October 18, 2008; Page B01
After a nearly eight-hour trial in Alexandria traffic court, Rep. Vito Fossella of New York was found guilty last night of driving under the influence, but the judge did not decide whether the Republican congressman was so drunk he should go to jail.
Instead, Chief Alexandria District Court Judge Becky J. Moore decided to hold a separate hearing on whether Fossella's blood-alcohol content was above 0.15, which would require a mandatory five-day jail term, despite hours of testimony and argument on the issue. A separate hearing on a traffic charge is not unheard of but highly unusual, veteran lawyers said.
Fossella, 43, declined to comment after the hearing, then waded through a phalanx of photographers and confused pedestrians as he left the courthouse on King Street in Old Town. One of his attorneys, Barry J. Pollack, said, "We're disappointed in the judge's ruling, but Congressman Fossella has conceded he made a mistake when he had something to drink and then drove."
Fossella's arrest May 1 ended his political career after he disclosed to Officer Jamie Gernatt that he was going to visit his sick daughter in Alexandria. Fossella is married with three children who live in Staten Island. After New York reporters dug deeper into the details of his arrest, they found that Fossella had been bailed out of jail by retired Air Force Col. Laura Fay and that Fay had a 3-year-old daughter. Fossella acknowledged that he was the girl's father.
Fossella took the stand to give his account, which started on the afternoon of April 30 at a White House reception for the Super Bowl champion New York Giants. Fossella said he had nothing to drink there and then returned to Capitol Hill for work and votes on the House floor.
During breaks on the floor, Fossella said, he sometimes repaired to a side office and cleaned his hands with Purell, a hand sanitizer that is more than 60 percent ethyl alcohol, according to its manufacturer. His attorneys said the alcohol in the Purell contributed to the elevated blood-alcohol reading many hours later.
Fossella said that about 8 p.m. he went from Capitol Hill to a private dinner at Bobby Van's Steakhouse for about two dozen Giants fans in town for the White House reception. The congressman said he had not quite two glasses of wine with dinner, then went upstairs to the bar and sipped another glass of wine. He said he left about 10 p.m. with a friend, identified by one of his attorneys as a Secret Service agent.
Fossella drove the two to Logan Tavern, near 15th and P streets NW, where, he said, he was spotted by friends at the bar. However, the agent fell asleep on some chairs near the bathroom, Fossella and a tavern owner said, and then fell and crashed into a table. The men were asked to leave, Fossella said, and he said he drove the agent back to his office.
There was no testimony about Fossella's location for the next hour or so, until he appeared on Seminary Road in Alexandria at 12:10 a.m. He said that he did not run a red light, as Gernatt testified, but that he was in "a little bit" of a hurry.
"I was told my daughter was sick," Fossella said, referring to his then-secret daughter.
Gernatt testified that Fossella smelled of alcohol, that his lips were red, eyes bloodshot and face flushed. He said Fossella had trouble standing on one foot for 30 seconds, skipped some letters when reciting the alphabet from D to T and stumbled while walking a straight line in heel-toe fashion. Fossella said he didn't stumble or skip any letters.
Defense expert Thomas E. Workman said Fossella's blood-alcohol tests, taken at a Fairfax County police station at 2:54 a.m., were skewed because of the hand sanitizer and police radio interference, two factors he said have been shown to affect readings. Alka Lohmann, head of Virginia's forensic breath-alcohol testing, said police radios did not affect the breath machine, and Irma Adams, her predecessor, said hand sanitizer did not interfere, either.
Moore found Fossella guilty of running a red light, a $100 fine, and driving under the influence. But she elected to hold the sentencing hearing Dec. 8, which appeared to baffle lawyers on both sides.