Fossella Goes on Trial for Second Time Today

Posted April 10, 2009 at 5:40pm

Former Rep. Vito Fossella’s Congressional career may be over, but the New York Republican is determined not to give up the fight over the drunk-driving arrest that led to his downfall.

Today marks the opening of Fossella’s second trial for driving while intoxicated, after he appealed his conviction to the Alexandria (Va.) Circuit Court. In December, a district judge ruled that he was guilty of having a blood alcohol level of more than .15 — a conviction that carries five days of mandatory jail time.

It has been almost a year since Fossella’s May 1 arrest in Alexandria. The resulting media exposure prompted revelations that he was having an extramarital affair and had a daughter with his mistress.

The scandal forced Fossella to retire at the end of the 110th Congress. But he still maintains his innocence and has consequently dragged a relatively minor charge into months of motions and appeals.

Fossella’s latest effort is an appeal to the Circuit Court. This time, his attorneys will argue in front of a jury. But their argument will be the same — namely, that Fossella wasn’t drunk and the breath alcohol tester was faulty.

During the seven-hour December trial, defense witnesses described Fossella as sober during several events that day, including a White House event and a stop at Logan Tavern in Washington, D.C.

But police officers said Fossella was obviously drunk, testifying that he was “swaying— and unable to recite the alphabet backward. A breath alcohol tester showed a blood alcohol level of .17, which is more than twice the legal limit of .08.

At one point, an officer claimed that Fossella threatened to go to the bathroom on the floor if he was not allowed to visit the restroom before taking a breath alcohol test.

But much of the trial was filled with technical descriptions of the equipment itself, a model called the Intoxilyzer 5000.

Fossella’s attorneys brought in experts to testify that the machine was faulty, offering as proof a printout that spelled the arresting officer’s name wrong. One witness testified that Fossella’s hand sanitizer might have thrown off the reading.

Prosecutors, meanwhile, argued that the machine was functioning within the legal margin of error.

The appeals process has reflected that focus, with Fossella’s attorneys submitting motions to dismiss and delay the trial because of a lack of information on the Intoxilyzer 5000.

On Thursday, his attorneys asked the judge for more time to convince the company that makes the Intoxilyzer to hand over the machine’s source code.

“We have good reason to believe that the machine was not operating properly and the source code might reveal and explain why it wasn’t running property,— said Barry Pollack, one of Fossella’s attorneys.

Pollack is unlikely to ever get that chance. The judge denied a continuance for the trial, and it’s now set to be finished by Tuesday evening.

The witnesses and testimony are expected to be similar to those in the December trial. But Pollack said the defense will be able to call at least one new witness: an expert who studied the machine used on Fossella.