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Disgraced former Rep. Vito Fossella is headed to court to find out if he has to serve jail time for a drunken-driving incident that wrecked his career by revealing he'd fathered a child from an extramarital affair.

A judge has scheduled a Monday afternoon hearing to decide if Fossella, a New York City congressman for more than a decade, was so drunk he should be slapped with a five-day jail sentence.

Fossella was arrested after running a red light on May 1 in a Virginia suburb of Washington, and convicted of drunken driving in October. Under Virginia law, a driver who registers a blood alcohol content of 0.15 or higher must serve five days behind bars. Police say Fossella's blood alcohol content was 0.17.

The arrest led to revelations that Fossella — who has a wife and three children in his home district of Staten Island — also had a young daughter with a former Air Force officer.

Fossella decided not to seek re-election this year, and a Democrat won his seat. Now, Fossella faces the prospect of ending his once-promising political career with a stint in the slammer.

Judge Becky Moore of Alexandria General District Court has received pre-sentencing arguments from both sides.

In court papers, Fossella's lawyer, Jerry Phillips, contends the machine the police used to test Fossella's blood alcohol content was faulty and for that reason he should not face jail time.

The lawyer is asking the judge to sentence Fossella to a suspended jail sentence, an alcohol safety course and a one-year suspension of his driver's license in Virginia.

Prosecutor David Lord dismissed the contention there was anything wrong with Fossella's intoxication test results, and suggested Fossella may have pounded drinks just before getting behind the wheel, which would have led to his 0.17 reading on the machine.

"It is a reasonable inference that if a person 'slams' or rapidly consumes alcohol immediately before leaving a bar, the suspect will experience a rising BAC at the time of arrest," Lord argued, referring to the blood alcohol level.


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