Fossella Found Guilty of Driving While Intoxicated

Posted October 17, 2008 at 6:39pm

Updated: 9:14 p.m. A Virginia district judge late Friday found Rep. Vito Fossella (R-N.Y.) guilty of driving while intoxicated and running a red light. But Judge Becky Moore put off ruling on Fossella’s blood-alcohol level, which will determine whether he serves a five-day prison sentence, until a Dec. 8 sentencing hearing. Fossella was fined $100 for running the red light. Fossella, 43, was arrested on May 1 in Alexandria after he was was stopped just after midnight. The incident prompted revelations that Fossella fathered a daughter with Air Force officer Laura Fay, with whom he had an extramarital affair. It also led to a decision by Fossella, the only Republican in the New York delegation, to retire at the end of this Congress. Prosecutors allege that Fossella’s blood-alcohol level was 0.17, above the 0.15 limit that would trigger the mandatory prison sentence under Virginia law. Fossella’s attorneys argued during Friday’s seven-hour trial in Alexandria’s General District Court that there were glitches in the breathalyzer test that could have skewed those results. Fossella also testified that he had only two glasses of wine that night. “What the judge hasn’t decided at this point is whether he was at the level of intoxication that the Commonwealth alleges,” Fossella attorney Barry Pollack said. Fossella had no comment after leaving the courthouse shortly after 7:30 p.m. His trial was unusually long and complicated for a court that usually dispenses with traffic offenses in minutes rather than hours. Fossella’s attorneys called witnesses who were with the Congressman the night he was arrested, and who all attested that he did not seem drunk. But the timeline ended at 10 p.m., two hours before Alexandria police officer Jamie Gernatt pulled over Fossella. Earlier Friday, Gernatt testified that Fossella had trouble following instructions for the field sobriety test and at one point failed to correctly recite a portion of the alphabet. Gernatt described a “swaying” Fossella whose lips were “stained red” and whose car had a “strong alcoholic odor.” “He was stumbling a bit,” he said, “and was a little confused.” A breathalyzer at the scene showed his blood-alcohol content to be 0.13. A second test about an hour later on a purportedly more accurate machine, the Intoxilyzer 5000, registered “invalid” on its first reading. A subsequent reading 20 minutes later on that machine registered 0.17. Two defense witnesses testified that an invalid reading usually means that the machine is not registering a constant blood-alcohol level. Fossella’s attorney’s argued that the invalid reading could have occurred because the New York Republican has a habit of touching his mouth, and had used some hand sanitizer, which contains alcohol, earlier in the evening in the House cloakroom. Thomas Workman, an electrical engineer and patent lawyer, testified that when considering the Intoxilyzer’s possible software glitches, interference from officers’ nearby radios and the hand sanitizer, Fossella’s actual alcohol content could have been as low as .06. In experiments with the machine, he said, “someone with a .02 will read above a .08 because of hand sanitizer.” “These results cannot be trusted to be a 0.17,” he added.