From The Hill:
If Rep. Vito Fossella (R-N.Y.) is unable to reach a deal with prosecutors on his DUI arrest, he will likely have to serve five days in jail before the end of the year, making him only the fourth sitting member of Congress to be locked up following a criminal conviction and dragging his troubles back into the spotlight just as Republicans were counting on them having vanished.
Not since Rep. John Dowdy (D-Texas) was sent to prison for his 1972 conviction for bribery, obstruction of justice and perjury has a sitting member of the House been sentenced to jail or prison following a criminal conviction, according to the House historian.
If Fossella has to serve jail time and steps down to avoid forcing House Republicans to deal with having a member of their conference locked up, he could trigger a special election in his district.
Under state law, any resignation before July 1 gives New York’s Democratic Gov. David Paterson the option of calling a special election. And Republicans have lost three special House elections since March. If Fossella resigned after July 1, there would be no special election and the seat would remain empty for the remainder of the term.
On Wednesday the House ethics committee formally voted to establish an investigative subcommittee to probe Fossella’s DUI. The committee recommended deferring its inquiry until Fossella’s criminal case is resolved.
Fossella has indicated to the court that he intends to plead not guilty to his May 1 DUI. His case is scheduled to go to trial on June 27.
Legal experts say the threat of jail is still very real for Fossella, and almost certain to happen before year’s end if ordered by a judge as part of a conviction.
Police reports from Fossella’s May 1 arrest in Alexandria, Va., indicate that the New York Republican submitted to two Breathalyzer tests — one after he was pulled over for running a stoplight at the corner of Seminary Road and Library Lane and a second following his physical arrest.
According to police, Fossella’s blood alcohol content (BAC) was initially recorded at 0.13, but was later recorded at 0.17 on what police described as a more reliable machine.
Both are above Virginia’s legal limit of 0.08. But only Fossella’s second alleged BAC of 0.17 is above the 0.15 BAC that triggers an automatic five-day jail sentence in the commonwealth.
A plea to a first-offense DUI would force Fossella to surrender his license for one year but would get him out of jail.
If Fossella is convicted and his BAC is found to have been above 0.15, he will be required to begin his jail sentence almost immediately.
But Fossella reserves the right to appeal a conviction, which, in Virginia, would automatically negate the original conviction and any sentence attached to it.
An appeal to the circuit court would likely take one to two months to resolve, lawyers said. A conviction in circuit court could be appealed as well, but would not negate a jail sentence if a judge or jury imposes one.
House GOP leaders said Fossella “made the right decision” when he announced on Monday he would not run for reelection. Fossella’s announcement came almost three weeks after his arrest and the subsequent revelation he has an out-of-wedlock child.