Fossella's defense: It was the hand sanitizer

Photo credit: Urbanite

Rep. Vito Fossella, R-NY, center, exits court with his defense team after his trial on drunken driving charges in Alexandria, Va. on Friday. (AP)

By Jason Fink

Call it the clean hands defense.

Though Rep. Vito Fossella (R-Staten Island) was recently convicted on drunk driving charges in Virginia, he faces another hearing in December to determine whether his blood alcohol level (BAC) was high enough to land him in jail.

At the heart of his case as to why his BAC was 0.17, more than twice the legal limit: Hand sanitizer.“Hand sanitizers contain either very high concentrations of ethanol,

which is in liquor, ... or it contains rubbing alcohol,” said Thomas Workman, a lawyer and engineer who has already testified in Fossella’s trial. “When you put alcohol on the skin, one thing is it evaporates but the other thing is it is absorbed into the body.”

Fossella’s legal team is not alone in coming up with creative

defenses.

- In 1976, an attorney for Dan White, a former San Francisco

supervisor who assassinated Mayor George Moscone, argued that having

consumed Twinkies and soda before the shooting, his client, already

prone to depression, experienced serious mood swings. White was

convicted of manslaughter because of his “diminished capacity.”

- In 1991, the lawyer for Kathy Willets of Fort Lauderdale, Fla.,

argued that Willets was driven to prostitution by nymphomania brought on

by side-effects of an antidepressant. This forced her to need sex with

as many as eight men daily. Willets and her husband were convicted of

prostitution charges.

Fossella’s lawyers may also have another novel defense. They have argued that a field sobriety test, in which the congressman was asked to recite the alphabet from D through T, was flawed because it should, in fact, have started with A.

A spokesman for Fossella, who is not running for re-election, did not return a phone call yesterday seeking comment.

In Alexandria, Va., where Fossella was arrested, anything over 0.15 triggers a mandatory minimum of five days in jail.

Workman said the hand sanitizer could account for the difference between 0.17 and, perhaps, a reading below 0.15 - which could be the difference between jail or simply a fine.

“In 20 years and 4,000 cases I’ve never heard of this as an approach to defend a drunk driving case,” said Howard Greenberg, a New York City defense lawyer who was not involved in Fossella’s case.

Still, another New York defense lawyer, Brian Griffin, suggested one more possibility.

Perhaps, Griffin said, the alcohol “was on his hands and he wiped his lips or wiped his mouth.”

“Even if it’s a drop, that’s all it takes,” he said.

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