Representative Vito Fossella may not be ready to fight for re-election to the House, but he will try to fight a DWI conviction: Fossella's defense lawyer "subpoenaed files" from the maker of the Intoxilyzer 5000, a device whose findings have been challenged before.

Fossella was found with a blood level alcohol of 0.17, twice the legal limit, in Alexandria, VA. The scandal grew when the media wondered who the woman who picked Fossella up from the police station was and the married Fossella was forced to admit it was his girlfriend with whom he had a love child.

The Daily News looked at the Alexandria police records, which stated that Fossella initially "tested at 0.13 in a field sobriety exam and he failed a dexterity test." Then the cops took Fossella to a neighboring county for the Intoxilyzer test (the one in Alexandria wasn't working). A number of cases involving Intoxilyzer results have been tossed out (see here and here) ; a lawyer said, "Fossella has a chance of winning. This equipment is over a decade old."

If Fossella is convicted, there will be a mandatory five day jail sentence. And this weekend, Fossella let his girlfriend do the driving.