This Week's Big Virginia DUI News Story... Former U.S. Congressman Vito Fossella Going to Jail

This gentleman is former U.S. Congressman Vito Fossella. He's been serving the people of New York for 12 years. This weekend he'll be serving time in a Virginia jail. That's because he blew a 0.17% BAC after running a red light in Alexandria, just across the river from Washington D.C. His DUI contains some very important lessons for anyone charged with DUI in Virginia.

First, it is worth noting that this guy is going to jail. This in and of itself is amazing, and it demonstrates the tremendous odds in favor of the prosecution here in Virginia. You can be certain that Vito is not a poor man. He could afford the best criminal defense attorneys in Virginia. But despite their presentation of the most compelling evidence they could come up with, he is still going to serve the mandatory minimum sentence of 5 days in jail (although he gets a day of credit from being locked up when he was arrested).

His defense team was prepared to argue that his breath test was inaccurate due to a Purell hand sanitizer containing alcohol that he had used 9 hours earlier (sounds kinda dubious). Also, it was claimed that the breath testing machine was inaccurate because of radio wave interference (not normally a great argument, but the machine allegedly misspelled the cops name on the certificate - a great argument). But the problem they ran into was the Virginia jury sentencing rule.

In most states you can try a DUI case to a jury, which gives you better odds than trial before a judge. But if you do that in Virginia, juries that convict also impose a sentence. Which makes this outcome understandable. You never know what a jury will do as demonstrated by the OJ Simpson acquittal and subsequent conviction. His defense tried to make it sound like Vito decided to plead guilty because it was the right thing to do in the wake of the recent tragic death of LA Angels pitcher Nick Adenhart. I think his true motivation was the thought of spending a year in jail. That's the maximum sentence, but this was an aggravated DUI, and with Virginia juries, you never know.

The second point of interest was the fact that Mr. Fossella is getting weekend time. My experience with Virginia courts is that mandatory minimum time is always straight time - no weekends and no work release. That means I'll be citing this case from now on in every mandatory minimum case if the client is convicted. No longer are Virginia's judges shackled to any sort of unofficial policy on such sentencing options.

The third point of interest is Vito's fatal flaw. If you know you are drunk and the police want a breath sample, you are less likely to serve time in jail (especially on a first offense) if you refuse. When you provide a breath sample, you never have any idea what will result. Will it be 0.14 (no mandatory minimum sentence), 0.15 (five days), or 0.20 (ten days)? If you don't know, you probably shouldn't blow. Of course, the refusal carries a 12 month hard suspension with no restricted driving privileges. So if you prefer jail to a hard license suspension, feel free to take your chances.

Here's what I want to know: how many bills did this guy vote for that ratcheted up the penalties for DUI? I wonder how he's going to feel about those votes as he sits in jail this weekend? Also, how much money did MADD get from the federal government while this guy was serving, and will they return a pro rata share of those funds? Could it be that MADD is really all about money rather than taking an ethical stand on drunk drivers?