County of Waukesha v. Jacob A. Vecitis, 2023AP919, 2/12/25, District II (one-judge decision; ineligible for publication); case activity
Vecitis appeals from a judgment, entered after a bench trial, convicting him of OWI 1st, and an order denying reconsideration. COA concludes the circuit court’s factual findings were not clearly erroneous and affirms.
After a single-car accident, a deputy arrested and transported Vecitis for a breath test. (¶3). The deputy administering the test applied hand sanitizer to her hands either right before or right after the first diagnostic test and “wondered aloud to Vecitis . . . whether the hand sanitizer might affect the result of the breath test.” (¶4). The validity of the breath test was the primary issue at trial.
The county called various witnesses at the bench trial, including a DOT intoximeter specialist, who opined that “the instrument was accurate for breath alcohol testing” and that the “subject test record is a valid and accurate test.” (¶5). Vecitis testified as follows 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.
(¶7). Vecitis also called an expert witness to testify based on a review all of the reports, video of the accident scene, and a review of the professional literature on the effects of hand sanitizer inhalation and blood in the oral cavity on alcohol breath testing. He opined that the testing device would not have detected the vapors from the sanitizer while testing the ambient air, but that alcohol molecules from the 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. The expert also testified that if a subject consumed alcohol within the three hours preceding a breath test, any blood in the oral cavity would contaminate the test and have an additional compounding effect, leading to an inaccurately high result. In addition, he opined that .12 BAC is not enough to render someone unconscious. (¶8).
The county argued in closing that the intoximeter was in proper working order and that if there had been alcohol in the air, it would not have passed the diagnostic and blank tests. Vecitis argued that both the hand sanitizer and blood in his mouth were legitimate issues that called into question the accuracy of the breath test. (¶9). The circuit court found Vecitis guilty of OWI.
Vecitis challenges the circuit court’s findings of fact, conclusions of law, and decisions regarding admissibility of evidence. Factual findings shall not be set aside unless clearly erroneous. Wis. Stat. § 805.17(2). COA sorts through the various explicit and implicit factual findings made by the circuit court, and concludes that none were clearly erroneous. The court relied on the county’s evidence and implicitly found it credible. (¶¶17-25).
COA next considers de novo whether the circuit court’s legal conclusions were correct. The court concludes that given the trial court’s factual findings, the breath test established that Vecitis had a blood alcohol concentration above the legal limit. COA also concludes that due to the circuit court’s factual finding regarding the proper functioning of the intoximeter, there is no basis for upsetting the discretionary decision to admit the evidence. (¶¶28-31). Given COA’s affirmation of the circuit court’s factual findings and the discretionary decision on admissibility, it also concludes that the county met its burden to prove Vecitis operated while under the influence. (¶32).
Finally, COA concludes that the motion for reconsideration was denied based upon a
review of the relevant facts and affirms the court’s discretionary decision denying the motion for reconsideration. (¶35).
