County of Waukesha v. Jacob A. Vecitis

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 12, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP919 Cir. Ct. No. 2021TR4801

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

COUNTY OF WAUKESHA,

PLAINTIFF-RESPONDENT,

V.

JACOB A. VECITIS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Waukesha County: DENNIS P. MORONEY, Reserve Judge. Affirmed.

¶1 LAZAR, J.1 Jacob A. Vecitis appeals from a judgment against him
for first offense operating a motor vehicle while intoxicated (OWI) after a trial to

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2023AP919

the court2 and from an order denying his motion for reconsideration. Vecitis
asserts that evidence in the Record—namely that blood in his mouth and the
tester’s use of an alcohol-based hand sanitizer immediately prior to administering
his breath test—establishes that the breath test result in his case was scientifically
unreliable. This court concludes that the factual findings made by the trial court
were not clearly erroneous and, given those facts (both expressly made and
reasonably inferred), the Intoximeter breath test established that Vecitis had a
blood alcohol concentration above the legal limit. Vecitis was thus appropriately
found guilty of operating a motor vehicle while under the influence of an
intoxicant. Moreover, the trial court did not erroneously exercise its discretion in
denying Vecitis’s motion for reconsideration. This court affirms.

BACKGROUND

¶2 Vecitis allegedly lost consciousness as he switched lanes while
driving on Interstate 94, causing his vehicle to roll over. The accident resulted in
injuries to his head when his vehicle was pinned against a pole on the side of the
freeway. Various witnesses testified about the facts related to this single-vehicle
accident and leading up to Vecitis’s arrest.

¶3 Waukesha County Sheriff Deputy Keith McDonald made contact
with Vecitis at the crash site. He testified that he noticed the injuries to Vecitis’s
head—though Vecitis refused medical attention from the EMS staff on the
scene—and noticed “a mild odor of intoxicants coming from his breath.” Vecitis
told McDonald that he had consumed two drinks that afternoon. He refused to do

2
The Honorable Dennis P. Moroney, reserve judge, conducted both the trial and
subsequent motion for reconsideration.

2
No. 2023AP919

standardized field sobriety tests out of a claimed concern that his head trauma
might make such tests unreliable. McDonald then arrested Vecitis and transported
him to the sheriff’s department for breath alcohol testing. Prior to testing, in
accordance with his training, McDonald observed Vecitis for twenty minutes,
during which time Vecitis did not smoke, regurgitate, vomit, or drink alcoholic
beverages. McDonald had no indication at that time that Vecitis had any blood in
his mouth or was bleeding inside his mouth.

¶4 Deputy Shannon Fettig conducted Vecitis’s breath test at the
sheriff’s department using an Intoximeter EC/IR II device. Following the protocol
set forth by the state and after being advised that McDonald had already conducted
the required twenty-minute observation, she performed: (1) a diagnostic test to
check internal functioning of the instrument (which passed); (2) a “blank check” to
ensure that there was no alcohol in the ambient air in and around the device
(which resulted in a reading of 0.000); (3) a test of Vecitis’s first breath sample
(which resulted in a reading of 0.124); (4) another blank check (which resulted in
a reading of 0.000); 5) an accuracy check of a dry gas target (which conformed
with requirements); (6) another blank check (which resulted in a reading of 0.000);
(7) a test of Vecitis’s second breath sample (which resulted in a reading of 0.127);
(8) a final blank check (which resulted in a reading of 0.000); and (9) a final
diagnostics test (which passed). Either right before or right after the first
diagnostic test, Fettig applied hand sanitizer to her hands. Though she did not
touch the mouthpiece into which Vecitis blew with her hands, she wondered aloud

3
No. 2023AP919

to Vecitis and McDonald, who was observing the test, whether the hand sanitizer
might affect the result of the breath test.3

¶5 The County also called Therese Sanders, an employee of the state’s
Department of Transportation who specializes in breath tests for alcohol and
whose responsibilities include maintaining breath testing equipment and training
others to use this equipment. She described the safeguards implemented to ensure
that readings from the breath testing devices in the state are accurate, including the
twenty-minute “close and scrutinous” observation period, two breath samples that
must correlate, and the various blank checks and diagnostic tests described by
McDonald and Fettig. She also testified that “with any … OWI investigation, an
officer would be required to do a mouth check to ensure that there’s no foreign
objects in the mouth that could possibly contaminate [the] breath sample.”
Sanders explained that the blank checks draw air into the Intoximeter and that
would include a check of “the air within the instrument, as well as around the
instrument,” and that if any of the four blank checks result in a reading greater
than zero, the testing will not proceed. Sanders testified that, based on the
maintenance of the Intoximeter, “the instrument was accurate for breath alcohol
testing” and that the “subject test record is a valid and accurate test.”

¶6 Sanders agreed that WIS. ADMIN. CODE § TRANS 311.06(1) (Jan.
1985) states that “[o]nly methods approved by the department may be used to
perform quantitative breath analysis” to determine the alcohol content and that
§ TRANS. 311.06(3)(a) includes the requirement that the “test subject shall not

3
Fettig did explain that the Intoximeter tested ambient air in the “blank checks” that are
run pursuant to protocol.

4
No. 2023AP919

ingest alcohol, regurgitate, vomit, or smoke” during the twenty-minute observation
period prior to testing. Although she agreed that the dictionary with which she
was presented included “inhalation” in the definition of “ingestion,” she testified
that she considered “ingestion” to be “eating” because “scientifically, [she]
wouldn’t utilize that term” for “inhalation.”

¶7 Vecitis testified in his own defense. He explained that he suffered
from a heart condition known as a “syncope” that had caused him to lose
consciousness while driving on two different occasions—once when he was
sixteen years old and then eight years later, causing the accident described above.
He had received medical attention for his condition and had a monitor implanted
in his heart prior to trial. Vecitis admitted to consuming two drinks prior to
driving on the day of the accident, but denied that he felt any effects of alcohol
when he was getting into his car. He testified that he was bleeding from his head
and inside his mouth after the accident. In recounting his breath test at the
sheriff’s department, he recalled having blood in his mouth and the “strong odor”
of an alcohol-based hand sanitizer when Fettig was administering the test, an odor
that he claimed pervaded the room for the duration of the test.

¶8 Vecitis also called in his defense an expert witness, Ronald E.
Henson, Ph.D., who has expertise in alcohol physiology and pharmacology and in
the Intoximeter EC/IR II device used in Vecitis’s case. Henson testified that he
had reviewed all of the law enforcement reports and video of the accident scene
and that he had conducted a review of the professional literature on the effects of
both hand sanitizer inhalation and blood in the oral cavity on alcohol breath
testing. With respect to the hand sanitizer applied by Fettig in this case, it was
Henson’s opinion that the testing device would not have detected the vapors from
the sanitizer while testing the ambient air, but that alcohol molecules from the

5
No. 2023AP919

sanitizer would have contaminated the device and would have been inhaled by
Vecitis, rendering the results of the test scientifically unreliable and higher than
the actual concentration of alcohol in his blood from drinking. He also testified
that if a subject consumed alcohol within the three hours preceding a breath test as
Vecitis had, any blood in the oral cavity would contaminate the test and have an
additional compounding effect, leading to an inaccurately high result. Henson
also testified that, based on his extensive training and research, a valid test of .12
blood alcohol concentration is not enough to render someone unconscious.
Henson was not asked if a combination of .12 blood alcohol concentration
together with medical syncope could render someone unconscious.

¶9 In closing, the County argued that it had proved the Intoximeter used
to test Vecitis’s breath was in proper working order and operated by a qualified
individual and that, if there had been any alcohol in the air from the hand sanitizer,
the instrument would not have passed its diagnostic tests and blank checks.
Vecitis argued that the breath test at issue was not administered according to WIS.
ADMIN. CODE § TRANS 311.06 because Vecitis ingested alcohol—he inhaled
vapor from the hand sanitizer—within the twenty minutes prior to his test, and that
the trial court should not admit evidence from that test because it was irrelevant,
citing City of New Berlin v. Wertz, 105 Wis. 2d 670, 314 N.W.2d 911 (Ct. App.
1981). Although the test result may have been prima facie evidence of
impairment, he contended, “[i]t is not good enough after Dr. Henson’s testimony
explains why the [§ TRANS 311.06] requirement has to be followed meticulously
for this highly sensitive device to be accurate.” He argued that both the hand
sanitizer and blood in Vecitis’s mouth were legitimate issues that called into
question the accuracy of the breath test.

6
No. 2023AP919

¶10 The trial court found Vecitis guilty of OWI. The court found as
factual matters that the accident described above happened when Vecitis “was in
the middle lane of traffic” and “attempted to get off of I-94,” that “McDonald
smelled an odor of alcohol on [Vecitis’s] breath, and [Vecitis] admitted to having
[consumed] two drinks earlier that day,” and that Vecitis “attempted to show that
the test results involved here are not appropriately to be considered by the [c]ourt”
because they “were conducted with the presence of alcohol … in hand sanitizers
utilized” by the deputies conducting the test. The court also acknowledged
Vecitis’s theory related to blood in his mouth during the test before issuing its
“conclusions of law … that the [I]ntoximeter testing involved was relevant and
conducted to the requirements of the Wisconsin Administrative Code,” that the
instrument “would have ceased its operation of proceeding” if contaminants were
found to exist, and “that the test result of .12 was appropriate under the
circumstances here.”

¶11 The trial court denied Vecitis’s motion for reconsideration in an oral
ruling following the motion and argument, and Vecitis filed this appeal4
challenging the underlying judgment and the oral order denying the motion for
reconsideration.

STANDARD OF REVIEW

¶12 Vecitis appeals a judgment of conviction entered after a trial to the
court. His arguments implicate the trial court’s findings of fact, conclusions of

4
In addition, Vecitis states in his Reply that this matter would be an appropriate appeal
for consideration by the entire panel. WISCONSIN STAT. RULE 809.41(a) requires a party in a
one-judge appeal seeking review by a three-judge panel to file a motion, which Vecitis has not
done. This appeal will be resolved by one appellate judge.

7
No. 2023AP919

law, and decisions regarding admissibility of evidence. Pursuant to WIS. STAT.
§ 805.17(2), a trial court’s “[f]indings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of the trial court to
judge the credibility of the witnesses.” By contrast, appellate courts review
de novo a trial court’s conclusions of law—even if the trial court characterized it
as a finding of fact. Carney v. CNH Health & Welfare Plan, 2007 WI App 205,
¶14, 305 Wis. 2d 443, 740 N.W.2d 625; City of Muskego v. Godec, 167 Wis. 2d
536, 545, 482 N.W.2d 79 (1992).

¶13 “The admissibility of evidence is within the trial court’s discretion.”
City of West Bend v. Wilkens, 2005 WI App 36, ¶13, 278 Wis. 2d 643, 693
N.W.2d 324; National Auto Truckstops, Inc. v. DOT, 2003 WI 95, ¶12, 263
Wis. 2d 649, 665 N.W.2d 198. “A trial court properly exercises its discretion
when it examines the relevant facts, applies a proper standard of law, and, using a
demonstrated rational process, reaches a conclusion that a reasonable court could
reach.” State v. Bailey, 2009 WI App 140, ¶15, 321 Wis. 2d 350, 773 N.W.2d
488. Where this court is asked to review such rulings, we look not to see if we
agree with the trial court’s determination but rather whether that court exercised its
discretion in accordance with accepted legal standards and with the facts of record.
National Auto Truckstops, 263 Wis. 2d 649, ¶12.

¶14 Finally, this court reviews a motion for reconsideration under an
erroneous-exercise-of-discretion standard. Koepsell’s Olde Popcorn Wagons,
Inc. v. Koepsell’s Festival Popcorn Wagons, Ltd., 2004 WI App 129, ¶6, 275
Wis. 2d 397, 685 N.W.2d 853; Lakeland Area Prop. Owners Ass’n, U.A. v.
Oneida County, 2021 WI App 19, ¶14, 396 Wis. 2d 622, 957 N.W.2d 605. Again,
appellate courts “will affirm a discretionary decision as long as the [trial] court
examined the relevant facts, applied a proper standard of law, and used a

8
No. 2023AP919

demonstrated rational process to reach a reasonable conclusion.” Lakeland Area
Prop. Owners Ass’n, 396 Wis. 2d 622, ¶14.

DISCUSSION

¶15 Vecitis and the County dispute whether the trial court decided
several issues as factual matters or legal conclusions. Ultimately, this appeal
implicates several findings of fact (some of which must be inferred), a
discretionary decision on the admission of evidence, and a conclusion of law—
namely, that the County met its burden of proof and established that Vecitis was
guilty of first offense operating a motor vehicle while under the influence of an
intoxicant.

¶16 Vecitis asserts that his inhalation of the hand sanitizer’s alcohol
vapor in the course of his alcohol breath test constitutes a violation of WIS.
ADMIN. CODE § TRANS 311.06(3)(a), which bars him (as the test subject) from
“ingest[ing] alcohol” prior to the breath test. He also asserts that he ingested
capillary blood, which he claims was in his mouth due to the accident, and that
that blood invalidated the test results. This court concludes that because the trial
court’s findings of fact were not clearly erroneous, and its decision to admit
evidence was not an erroneous exercise of discretion, the County did establish
Vecitis’s guilt.

I. The trial court’s factual findings were not clearly erroneous.

¶17 There are two sets of factual findings in this appeal. First, the trial
court made several explicit factual findings at the conclusion of the court trial.
Next, the court implicitly made additional factual findings that must be reasonably

9
No. 2023AP919

inferred—for without them, it could not have reached the conclusions that led to
the guilty verdict.

¶18 The trial court heard testimony from law enforcement personnel,
Vecitis, and experts for both sides. The court then expressly found the following
facts: (1) The accident “occurred when [Vecitis] either missed or changed his
mind” about when to exit the expressway, and Vecitis refused medical treatment;
(2) “Deputy McDonald smelled an odor of alcohol on [Vecitis’s] breath,” and
Vecitis admitted he consumed two drinks [old-fashioneds]; (3) Vecitis “was
informed of the procedure involved with having an [I]ntoximeter, including a 20-
minute observation period ... and that the testing was based upon the totality of the
circumstances in this case”; and (4) Vecitis argues that the test results should not
be considered because they “were conducted with the presence of alcohol or
related substance in hand sanitizers utilized by the sheriffs conducting the
[I]ntoximeter test,” or because Vecitis “had blood in his mouth from head injuries
received in the accident.” None of these explicit factual findings is clearly
erroneous, and Vecitis does not dispute them.

¶19 To reach its conclusions, however, the trial court necessarily had to
make other findings—findings it did not expressly state on the Record but are
inferred therefrom. It had to find that Vecitis either did not inhale or ingest
sufficient quantities of the hand sanitizer alcohol vapors or that any inhalation did
not significantly affect the Intoximeter test results. It also had to find that Vecitis
either did not have blood (capillary or otherwise) in his mouth prior to or during
the Intoximeter test or that the presence of any such blood did not significantly
affect the Intoximeter test results. Without these findings, the court could not have
concluded as it did that there were no contaminants present during the testing and

10
No. 2023AP919

that the Intoximeter “functioned appropriately and consistent with its monitoring
condition.”

¶20 “[I]n some cases the evidentiary facts [in a case] give rise to ultimate
facts upon which the conclusion of law must rest.” Kress Packing Co. v. Kottwitz,
61 Wis. 2d 175, 178, 212 N.W.2d 97 (1973). “[W]hen undisputed facts permit the
drawing of different inferences, the drawing of one such permissible inference of
fact is an act of fact finding and the inference so derived constitutes an ultimate
fact upon which a conclusion of law may rest.” Id. “When there is conflicting
testimony, the [trial] court [acting as the finder of fact] is the ultimate arbiter of the
witnesses’ credibility.” Welytok v. Ziolkowski, 2008 WI App 67, ¶28, 312
Wis. 2d 435, 752 N.W.2d 359; Bank of Sun Prairie v. Opstein, 86 Wis. 2d 669,
676, 273 N.W.2d 279 (1979). “When more than one reasonable inference may be
drawn from the credible evidence, a reviewing court must accept the inference
drawn by the trial court.” Village of Big Bend v. Anderson, 103 Wis. 2d 403,
410, 308 N.W.2d 887 (Ct. App. 1981).

¶21 Vecitis argues that he inhaled or ingested5 alcohol vapor from
Fettig’s hand sanitizer deep enough into his lungs to invalidate his test result.
Testimony centered on the odor of vapors in the ambient air and whether Fettig
touched the mouthpiece after applying the hand sanitizer.

5
This court need not decide whether inhalation of alcohol vapors constitutes
“ingest[ion]” as defined in WIS. ADMIN. CODE § 311.06(3)(a), the standard procedure for pre-
Intoximeter preparation, given the trial court’s factual finding, which is not clearly erroneous, that
it did not occur or affect the result in this case. See State v. Lickes, 2021 WI 60, ¶33 n.10, 397
Wis. 2d 586, 960 N.W.2d 855 (“Issues that are not dispositive need not be addressed.” (citation
omitted)).

11
No. 2023AP919

¶22 The trial court looked to the testimony of the witnesses. Sanders
explained that the blank checks were designed to determine whether there was
alcohol vapor in the ambient air, which, in Vecitis’s case, all resulted in a reading
of 0.000. The court weighed the credibility of Vecitis and Sanders and took into
account Vecitis’s expert’s opinion.6 There is no basis for this court to disturb
those credibility determinations. The trial court’s ultimate finding that Vecitis did
not inhale or ingest alcohol from the hand sanitizer is not clearly erroneous; it is
based upon the Record presented.

¶23 The question of capillary blood—and whether Vecitis had any blood
in his mouth prior to or during the testing—was also in dispute. McDonald, who
closely observed Vecitis for twenty minutes before the breath test was conducted,
testified that he did not recall Vecitis spitting or producing excess saliva during
that time period or during the test. Vecitis testified that he asked McDonald “at
least once to go spit in a trash can for … excess saliva or blood in the mouth,” and
that he “believed” there was blood in his mouth during the twenty-minute
observation period.

¶24 Again, the trial court considered the testimony of McDonald and
Vecitis. It further considered Henson’s expert testimony regarding the possible

6
Neither this court nor the trial court is bound to accept an expert’s opinion—even if
there is no contrary or competing opinion. Relying upon federal cases, our supreme court in
Pautz v. State, 64 Wis. 2d 469, 476, 219 N.W.2d 327 (1974) (citation omitted), held that “the
opinion of an expert, even if uncontradicted, is not required to be accepted as such testimony
must pass through the screen of the fact trier’s judgment of credibility.” Simply put, the trial
court, like a jury, “is not bound by expert opinions; rather, it can accept or reject an expert’s
opinion.” Geise v. American Transmission Co., 2014 WI App 72, ¶13, 355 Wis. 2d 454, 853
N.W.2d 564; State v. Kienitz, 227 Wis. 2d 423, 438, 597 N.W.2d 712 (1999); State v. Owen, 202
Wis. 2d 620, 634, 551 N.W.2d 50 (Ct. App. 1996) (trier of fact may accept certain portions of an
expert’s testimony while disregarding other portions).

12
No. 2023AP919

impact of capillary blood or blood in a subject’s mouth, and it determined that the
test results were nevertheless relevant and accurate. The court apparently accepted
the testimony of McDonald over Vecitis as to whether Vecitis spit during the
observation period and breath test at the sheriff’s department. Like the
consideration of the trial court’s other findings of fact, this court concludes that
these inferred findings are not clearly erroneous, and there is no basis to overturn
the trial court.

¶25 Finally, this court further notes that simply because Vecitis has a
pre-existing cardiac syncope condition does not mean that he was not also under
the influence of alcohol. The undisputed evidence about Vecitis’s medical
condition does not undercut the factual findings discussed above or render them
clearly erroneous.

II. Given the trial court’s factual findings, the breath test
established that Vecitis had a blood alcohol concentration above
the legal limit.

¶26 “A conclusion of law goes farther and accepts the facts, ultimate and
evidentiary, and by judicial reasoning results from the application of rules or
concepts of law to those facts, whether the facts are undisputed or not.” Kress
Packing, 61 Wis. 2d at 179. The trial court here concluded that: (1) “[T]he
[I]ntoximeter testing involved was relevant and conducted to the requirements of
the Wisconsin Administrative Code; and (2) “[T]he blank check on the ...
[I]ntoximeter machine ... functioned as it was programmed so to do.” If there
were contaminants “on or in the area,” it “would have ceased its operation of
proceeding to a test result. This did not occur.” It “functioned appropriately and
consistent with its monitoring condition.” Therefore, “the test result of .12 was
appropriate under the circumstances.”

13
No. 2023AP919

¶27 The trial court built upon its findings of fact—both those expressly
stated and implied—and concluded that Vecitis’s blood alcohol concentration was
.12, as shown by the two Intoximeter tests. This court reviews that conclusion of
law de novo.

¶28 The first statement the trial court set out as a “conclusion” in reality
included a discretionary decision on the admissibility of evidence in response to a
defense raised by Vecitis. The court stated that the Intoximeter was (1) relevant
and (2) that the testing was conducted pursuant to Wisconsin’s administrative
code. The court already found that the Intoximeter testing was properly performed
and that the fact that it did not cease operations because of a non-zero blank check
established that the machine “functioned appropriately and consistent with its
monitoring condition.” As noted above, there is no basis for upsetting this factual
finding and the resulting discretionary decision to admit the evidence.

¶29 Aside from his assertions that inhaled alcohol vapor and capillary
blood in his mouth impacted the Intoximeter, Vecitis does not assert that the
device was not operating properly or that its results (if valid) are not relevant. And
Vecitis’s argument that his inhalation constituted “ingestion” such that his test was
not in compliance with WIS. ADMIN. CODE § TRANS 311.06(3)(a),7 even if this

7
WIS. ADMIN. CODE § TRANS 311.06 provides:

(3) Procedures for quantitative breath alcohol analysis shall
include the following controls in conjunction with the testing of
each subject:

(a) Observation by a law enforcement person or combination
of law enforcement persons, of the test subject for a
minimum of 20 minutes prior to the collection of a breath
specimen, during which time the test subject did not ingest
alcohol, regurgitate, vomit or smoke.

14
No. 2023AP919

court were to accept it, does not automatically render the test results inadmissible.
In Wertz, 105 Wis. 2d at 671, we affirmed the trial court’s conclusion that
“compliance with all administrative code procedures was not required for test
results to be admitted.” While breath tests carry a statutory “prima facie
presumption of accuracy,” “the question of how accurately the test was performed
goes to the weight to be given to the test, not to its admissibility.” Id. at 674
(citation omitted).

¶30 Factors to be taken into account by a trial court include the ability
for the defendant to conduct “a complete and detailed cross-examination of all
witnesses, including the breathalyzer operator.” Id. at 677. Here, Vecitis was able
to cross-examine not only the operator of the Intoximeter and the officer who
observed the test but also a state expert with knowledge of the device’s
functioning in general and the impact of its operation when possible contaminants
are present. The court heard testimony about the practices and procedures for use
of the Intoximeter and was able to determine whether the test was relevant,
whether it was conducted pursuant to protocol, and whether anything had
compromised the integrity of the testing procedure and its results.

¶31 Given all of these factors and recognizing that appellate courts
afford deference to a trial court’s discretionary decision to admit evidence, this
court affirms the trial court’s first “conclusion” regarding the relevance of the
Intoximeter results.

¶32 The remaining question before this court is whether the trial court
correctly concluded that the County met its burden, pursuant to WIS. STAT.
§ 346.63(1)(a), and established to a reasonable certainty, by clear, satisfying, and
convincing evidence that Vecitis operated his motor vehicle while under the

15
No. 2023AP919

influence of an intoxicant. Given this court’s affirmation of all of the foregoing
facts and the trial court’s discretionary decision on admissibility, the County met
its burden. This court, thus, affirms that conclusion of law.

III. The trial court properly denied the motion for reconsideration.8

¶33 In addition to appealing the judgment of guilt after the court trial,
Vecitis has appealed the denial of his subsequent motion for reconsideration. This
court looks to whether that decision resulted from a demonstrated rational process
following an examination of the relevant facts as applied to the proper standard of
law. Lakeland, 396 Wis. 2d 622, ¶14; Koepsell’s, 275 Wis. 2d 397, ¶6.

¶34 At the motion for reconsideration hearing, the trial court found that,
given the .12 blood alcohol concentration reflected in the Intoximeter result,
Vecitis had likely consumed more than two drinks. It expressly rejected Vecitis’s
expert’s opinion that the hand sanitizer applied by the tester rendered the test
results false, and concluded that the medial syncope was “a factor that’s going to
[do] nothing more than exacerbate the issue of alcohol use under the
circumstances here.” The court further concluded:

So because it was measured by an instrument which was
said to be working—I have nothing to the contrary which
indicates otherwise, and I do not have anything to the
contrary that its ambient issues were raised by the hand
sanitizer after the lack of a hand sanitizer was noted by the
machine when it did its testing cycle.

8
In his arguments to this court, Vecitis mischaracterizes the hearing on the motion for
reconsideration; the trial court was not questioning testimony that was presented on the syncope
diagnosis, instead, it was concerned that a summary of a 120-page trial exhibit (that had been
handed to the court and County during the trial) had not ever been efiled and placed into the
record.

16
No. 2023AP919

So altogether, under the circumstances, I’m going to
deny your motion for reconsideration.

¶35 The trial court denied the motion for reconsideration based upon a
review of the relevant facts; the court reiterated that it had rejected the opinion and
theories espoused by Vecitis’s expert. The court noted that because there were no
other allegations that the Intoximeter was not functioning properly, there was no
basis to overturn its earlier conclusion that Vecitis was operating a motor vehicle
while under the influence of an intoxicant. Having already concluded that there is
no basis to overturn the judgment following the court trial, this court concludes
that the trial court’s discretionary determination denying the motion for
reconsideration, too, must be upheld.

CONCLUSION

¶36 This court concludes that the findings made by the trial court were
not clearly erroneous and the discretionary decision to admit evidence of Vecitis’s
breath test results was not in error. Based upon that test result, this court
concludes that the County established that Vecitis had an improper blood alcohol
concentration and was, thus, properly found guilty of operating a motor vehicle
while under the influence of an intoxicant. In addition, the denial of the motion
for reconsideration did not constitute an erroneous exercise of discretion.
Accordingly, the judgment and order of the trial court are affirmed.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

17