Fossella Lawyer Rebuts Prosecutor’s Plea for Jail Time

Posted December 4, 2008 at 11:03am

Attorneys for Rep. Vito Fossella filed a rebuttal Thursday to a request by prosecutors that the New York Republican serve five days in jail for a drunken-driving conviction.

Fossella was arrested in Alexandria, Va., on May 1, after an officer pulled him over for running a red light. A subsequent test found his blood alcohol level to be 0.17 — a level that is twice the legal limit and carries a mandatory five-day sentence.

But Judge Becky Moore has delayed on ruling whether that test stands until Monday’s sentencing. In October, she ruled that Fossella was guilty of the basic charge of driving while intoxicated.

In his rebuttal, Fossella attorney Jerry Phillips argues that the breathalyzer test was inaccurate, as evidenced by a software glitch that misspelled the name of the officer who gave the test.

“After all is said and argued, we must concede that this is a computer which can have issues like any other electronic machine,” Phillips wrote. “It is unrebutted that it did on the night of the Congressman’s arrest.”

During Fossella’s seven-hour trial in October, Phillips and other attorneys argued that Fossella had only a few glasses of wine on April 30th and was the victim of a faulty Intoxilyzer 5000.

But in his 11-page sentencing memorandum filed Monday, Virginia assistant commonwealth attorney David Lord argued that the Intoxilyzer 5000’s reading was accurate and within the scientific margin of error.

Fossella should spend five days in jail, he wrote, along with a one-year period of “good behavior.” He also requested that Fossella complete the Alcohol Safety Action Program, pay $300 in fines and only get a restricted license if his car is equipped with an “ignition interlock device.”

Fossella is retiring at the end of the 110th Congress, after the drunken-driving incident prompted revelations that he had an extramarital affair with Air Force officer Laura Fay and was the father of her daughter.