Rep. Vito Fossella was ordered Monday to serve five days in jail on a drunken-driving charge, but his imprisonment will likely be delayed because the New York Republican plans to appeal his case before a jury.
Virginia District Judge Becky Moore directed Fossella to show up for incarceration on Dec. 19.
But immediately after the ruling, Fossella appealed, ensuring a jury trial in Alexandria Circuit Court that will almost certainly postpone any jail time.
The legal process in Virginia is a lengthy one, said Barry Pollack, one of Fossellas attorneys. This is just the beginning.
Since Fossellas arrest on May 1, his case has dragged on far longer than is usual for such charges. Not only was the trial delayed several times, but when it did occur, it lasted for seven hours and included a half-dozen witnesses.
Mondays sentencing hearing was no exception. It lasted for about three hours, including a one-hour recess where the court waited for a defense witness who never showed.
Even Moore commented on the unusual length of the case, after denying requests to wait longer for the witness an expert toxicologist.
I finish all misdemeanors in an average of 79 days, she said. That would have been mid-July.
But Fossellas attorney did question one additional witness in a final attempt to prove that Fossella was not drunk.
Alexander Castro, a 24-year-old waiter and bartender at Washington, D.C.s Logan Tavern, testified that Fossella did not seem inebriated at about 10 p.m. on April 30, when Fossella escorted a drunken, unidentified friend out of the bar.
One of the owners of Logan Tavern told essentially the same story during the October trial.
In the end, Moore sided with prosecutors, ruling that Fossella was driving with a blood-alcohol content of more than .15, which carries a 180-day sentence, at least five days of which must be actively served.
Moore suspended 175 days of the sentence, incumbent on a year of good behavior.
Fossella also must pay a $300 fine and complete the Virginia Alcohol Safety Action Program. His license will 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, which is essentially a Breathalyzer that must be passed to start a car.
At the sentencing and in the October trial Fossellas attorneys questioned almost everything, from officers testimony to the breathalyzers accuracy.
At one point during the trial, they suggested that Fossellas hand sanitizer put on earlier that day in the House chamber could have affected the results of the breathalyzer.
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. An earlier test, taken at the scene, reported his blood-alcohol content to be 0.13.
When we come into the courtroom, we dont leave our common sense at the door, Larry Phillips, one of Fossellas attorneys, said Monday. You cant go from a .13 and three hours later be a .17.
Assistant Commonwealths Attorney David Lord, however, suggested in a sentencing memorandum that Fossella could have slammed drinks immediately before his arrest. The first test, furthermore, is considered less reliable.