State v. Patrick K. Kozel ( 2017 )

2017 WI 3
Supreme Court of Wisconsin
CASE NO.: 2015AP656-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Patrick K. Kozel,
Defendant-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
OPINION FILED: January 12, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 18, 2016
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Sauk
JUDGE: Guy D. Reynolds
JUSTICES:
CONCURRED:
DISSENTED: BRADLEY, A. W., J. dissents, joined by
ABRAHAMSON, J. (Opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner the cause was
argued by Michael C. Sanders, assistant attorney general, with
whom on the brief was Brad D. Schimel, attorney general.
For the defendant-appellant, there was a brief by Tracey A.
Wood, Sarah Schmeiser and Tracey Wood and Associates, Madison,
and oral argument by Tracey A. Wood.
2017 WI 3
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP656-CR
(L.C. No. 2013CT499)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
FILED
Plaintiff-Respondent-Petitioner,
v. JAN 12, 2017
Diane M. Fremgen
Patrick K. Kozel, Clerk of Supreme Court
Defendant-Appellant.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an
unpublished decision of the court of appeals, State v. Kozel,
No. 2015AP656-CR, unpublished slip op. (Wis. Ct. App. Nov. 12,
2015), which reversed the Sauk County circuit court's1 judgment
of conviction of defendant Patrick K. Kozel ("Kozel") and
remanded the case to the circuit court to suppress evidence of
drunk driving obtained from a sample of Kozel's blood. Kozel,
unpublished slip op., ¶1.
1
The Honorable Guy D. Reynolds presided.
No. 2015AP656-CR
¶2 After being arrested for drunk driving, Kozel was
taken to the Sauk County jail where he agreed to have his blood
drawn. In a clean room at the jail, an emergency medical
technician ("EMT") trained in drawing blood and acting at the
request of law enforcement used a new blood draw kit containing
a sterile needle to take samples of Kozel's blood. The EMT was
authorized in writing by a physician to draw blood when asked to
do so by law enforcement. Kozel argues that the results of
testing of his blood must be suppressed because the EMT who drew
Kozel's blood was not a "person acting under the direction of a
physician" as required by statute, Wis. Stat. § 343.305(5)(b)
(2011-12),2 and because the blood draw was taken in a
constitutionally unreasonable manner under the Fourth Amendment
to the United States Constitution and Article I, Section 11 of
the Wisconsin Constitution.
¶3 We conclude that the EMT who drew Kozel's blood was a
"person acting under the direction of a physician," Wis. Stat.
§ 343.305(5)(b), and that Kozel's blood was drawn in a
constitutionally reasonable manner. Accordingly, we reverse the
decision of the court of appeals.
I. FACTUAL BACKGROUND
¶4 On August 20, 2013, at about 2:10 a.m., while "sitting
stationary" at the Greenfield Town Hall in Sauk County,
Wisconsin, Deputy Brian Slough ("Deputy Schlough") of the Sauk
2
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
2
No. 2015AP656-CR
County sheriff's department allegedly observed a vehicle make a
wide right turn onto Bluff Road. Deputy Schlough began
following the vehicle. Bluff Road is a relatively "narrow,"
"hilly" roadway "with several curves," and there are no lane
markers on the road. According to Deputy Schlough, the ditches
on either side of the road are "very steep" at certain locations
and "a creek . . . runs along the road" at various points, so
the road is somewhat dangerous. According to Deputy Schlough's
testimony, the vehicle Deputy Schlough was following drove
across the road and almost into the ditch on the east side of
the road, and more than once the vehicle drove into the ditch on
the west side of the road. After following the vehicle for
about half of a mile, Deputy Schlough stopped the vehicle and
spoke with its driver, Kozel.
¶5 Kozel "had difficulty retrieving" his driver's license
from his wallet, and Deputy Schlough eventually obtained the
license for him. Deputy Schlough noticed that Kozel had
"bloodshot, glassy" eyes and the deputy smelled "a strong odor
of intoxicants coming from the vehicle." Kozel's speech was
slurred. Upon questioning, Kozel informed Deputy Schlough that
he was traveling from Black River Falls and that he had consumed
two beers. Deputy Schlough returned to his vehicle whereupon he
learned that Kozel had a prior conviction for operating while
intoxicated. Deputy Schlough decided to have Kozel perform
field sobriety tests and went back to Kozel's vehicle.
¶6 Deputy Schlough asked Kozel to exit his vehicle and
once again asked him "how much he had to drink and where he was
3
No. 2015AP656-CR
coming from." This time, Kozel replied that "he was coming from
a friend's house in Baraboo and that he had three 12-ounce cans
of Budweiser." Deputy Schlough asked Kozel if he had any
physical or medical problems, and Kozel stated that he did not.
Kozel did not perform well on the field sobriety tests. Deputy
Schlough then administered a preliminary breath test; Kozel blew
a 0.17, that is, the preliminary breath test results were well
in excess of the 0.08 legal limit. See Wis. Stat. § 340.01(46m)
(2013-14). Deputy Schlough placed Kozel in handcuffs and under
arrest. Kozel was then taken to the Sauk County jail.
¶7 At the jail, Kozel agreed to have his blood drawn. At
3:20 a.m., Matthew Goethel ("Goethel"), an EMT employed by
Baraboo District Ambulance Service ("BDAS"), conducted the blood
draw, obtaining two specimens. Testing by the Medical
Toxicology Section of the Wisconsin State Laboratory of Hygiene
showed a blood ethanol level of 0.196, again, well in excess of
the legal limit of 0.08. See Wis. Stat. § 340.01(46m) (2013-
14).
II. PROCEDURAL BACKGROUND
¶8 On October 7, 2013, a criminal complaint was filed
against Kozel in Sauk County circuit court charging him with one
count of operating a motor vehicle while intoxicated, contrary
to Wis. Stat. § 346.63(1)(a) (2013-14), second offense, see Wis.
Stat. § 346.65(2)(am)2. (2013-14), and one count of operating
with a prohibited alcohol concentration, contrary to Wis. Stat.
§ 346.63(1)(b) (2013-14), second offense, see Wis. Stat.
§ 346.65(2)(am)2. (2013-14). On November 5, 2013, Kozel filed
4
No. 2015AP656-CR
motions to suppress evidence obtained as a consequence of Deputy
Schlough's stop and detention of Kozel and to suppress the
results of the analysis of Kozel's blood.
¶9 On June 23, 2014, a hearing was held on the
suppression motion pertaining to the traffic stop initiated by
Deputy Schlough. The circuit court orally denied the motion.
On June 27, 2014, the court entered an order to the same effect.
¶10 On September 26, 2014, a hearing was held on the
suppression motion pertaining to the draw of Kozel's blood.
Kozel made two primary arguments relevant to this appeal: (1)
his blood was not taken by a person statutorily authorized to do
so, namely a "person acting under the direction of a physician,"
Wis. Stat. § 343.305(5)(b); and (2) his blood was taken in a
constitutionally unreasonable manner, see U.S. Const. amend. IV
("The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated . . . .").
¶11 In order to meet these claims, the State called
Goethel, the EMT who had drawn Kozel's blood, to testify at the
hearing. Questioning of Goethel provided the following relevant
pieces of information.
¶12 Goethel testified that he had been employed as an EMT
intermediate technician by BDAS since September of 2005. This
position is "a level of licensure set forth by the Wisconsin
[Department of Health Services] that allows [Goethel] to, upon
completion of appropriate and successful training, . . . provide
certain skills and perform various procedures." Goethel was
5
No. 2015AP656-CR
"certified in [cardiopulmonary resuscitation] through the
American Heart Association" and had taken "three certification
classes to allow [him] to [reach his] current level of
licensure," as well as "additional trainings as they are
required and/or available." He was "certified by the National
Registry of Emergency Medical Technicians as an advanced EMT."
¶13 When asked "[w]hat kind of things . . . [he] do[es]"
in his work for BDAS, Goethel replied that he "[r]espond[s] to
911 calls, interfacility transfers, perform[s] legal blood
draws, PR events, general education and training." He takes
care of people "who are sick and in an emergency setting."
Goethel "can perform splinting for possible fractures, spinal
immobilization, medical and trauma assessments, establishment of
intravenous lines, the administration of several different
medications by various routes and . . . also mak[e] transport
decisions."
¶14 As of August of 2013, Goethel was both licensed and
certified by the State of Wisconsin to "perform legal blood
draws" and had drawn blood between 100 and 150 times, not
including practice draws he had performed. Goethel had been
performing legal blood draws since June of 2009 under the
supervision of Dr. Manuel Mendoza ("Dr. Mendoza"), a physician
licensed in the State of Wisconsin who is the "medical director"
of BDAS. Dr. Mendoza had been serving in that position since
before Goethel joined BDAS. Goethel explained that as medical
director, Dr. Mendoza "signs off on not only our licenses, which
6
No. 2015AP656-CR
allow us to practice medicine, but also any of the additional
training and/or procedures that require approval."
¶15 The State introduced into evidence, in the words of
Goethel, "[A] letter from Dr. Mendoza to our staff, our
administration stating that the authorized EMT paramedics and
intermediate technicians may perform legal blood draws."3
According to Goethel, the letter was "current" and "was issued
to [Goethel] via [his] training director [at BDAS] at the time."
The letter states as follows (typographical errors have not been
corrected):
August 21, 2009
To Whom It May Concern:
As Medical Director for Baraboo District Ambulance
Service, I have authorized a standing order for the
EMT-Paramedics and approved EMT-Intermediate
Technicians authority to draw legal blood draws at the
request of the law enforcement officers.
The Baraboo District Ambulance Service EMT-Paramedics
and EMT-Intermediate Technicians are acting under the
direction of my physician license.
They have all completed extensive training regarding
the procedures and legalities of obtaining blood
draws. If you have any questions regarding this
manner, please do not hesitate to contact me.
Best regards,
[signature]
Manuel Mendoza, M.D.
Medical Control for Baraboo District Ambulance Service
3
Kozel's attorney objected to introduction of the letter.
The circuit court overruled the objection.
7
No. 2015AP656-CR
St. Clare Hospital
[address]
Baraboo, WI, 53913
[phone number]
¶16 Goethel was "personally familiar" with Dr. Mendoza,
and Dr. Mendoza occasionally appeared at Goethel's place of
work. Goethel agreed that Dr. Mendoza "give[s] trainings and
just in general ways supervise[s]" him. Goethel was certified
but not trained by Dr. Mendoza. Dr. Mendoza did not "test
[Goethel] or have [him] do [any] procedures for him"; "he simply
reviewed [Goethel's] certification." Dr. Mendoza had never
observed Goethel performing a blood draw at the jail. Although
Dr. Mendoza had never "personally told [Goethel] that [it] is
okay for [Goethel] to draw blood at the jail," Goethel testified
that Dr. Mendoza "is aware" that blood draws occur at the jail.
"All of the legal blood draws [Goethel] [had] performed ha[d]
been at the Sauk County Jail."
¶17 Goethel agreed with the defense that it is "possible
for a person to have medical issues that would affect a blood
draw," and that there is "the potential" for "some medical
issues [to] have a serious effect." But during a blood draw,
Goethel could contact Dr. Mendoza "[i]mmediately via cell
phone," and if Dr. Mendoza "were not available" Goethel could
contact "the on-duty physician at the St. Clare Hospital
emergency department." According to Goethel, there is always an
emergency doctor on call there. On cross-examination, Goethel
clarified that his "first point of contact would be the
emergency room doctor." In the event of an emergency,
8
No. 2015AP656-CR
Dr. Mendoza could be contacted by telephone for assistance, and
emergency room doctors were also available.
¶18 Goethel is regularly in contact with the emergency
department, "providing basic information on why [BDAS] had
contact with the patient and what interventions and procedures
[BDAS] performed," asking "any questions," and speaking with
them if BDAS "needed additional approval to do certain
interventions or provide certain medications." "[I]f somebody
had to be transported to the hospital," it could "be done
quickly." If Goethel ever were "in over [his] head," he
"could . . . call someone." Finally, if someone "experienc[ed]
a heart problem," Goethel himself could "be of assistance to
them" because he "ha[s] training in that." On cross-examination
Goethel granted that "[p]ossibly" a person experiencing such an
issue would "receive faster treatment if [the parties] were at
the emergency room already." Likewise, Goethel conceded that
"in some circumstances . . . there are specific interventions
that can occur at the emergency room that cannot occur at the
jail."
¶19 Goethel testified that he performed blood draws at the
Sauk County jail in Baraboo in "a small room" he "refer[s] to as
the prebooking area" which is "approximately eight feet by 12
feet." Goethel uses the room "at least once or twice a month."
When asked about the room's contents, Goethel explained:
On one side is a chair that's equipped with
armrests, very typical of what you would see at a
medical clinic or a hospital. There is a Breathalyzer
machine, which I have no use for.
9
No. 2015AP656-CR
There are various shelves and stacks of
paperwork. Additionally this is the location where
the unused and new legal blood draw kits are stored.
The room "appears clean" and "well-lit." Goethel knew that the
room was cleaned "regularly" because there is "a sign or chart
on the wall indicating when jail staff have come through to
perform janitorial duties." Goethel had never "noticed [the]
room to be dirty" before drawing an individual's blood in it,
and the room has never "looked any dirtier than an emergency
room" to Goethel. The floor "look[s] comparable to what
[Goethel] would see in an emergency room." The chair in the
room is "designed for drawing blood," and its armrests "are
specific for drawing blood." The chair is either "the type of
chair [one] might find in the emergency room" or "very close by
[sic]"; it "look[s] similar to the chair in the emergency room."
Goethel has never "noticed [the] chair to be dirty."
¶20 If Goethel ever "noticed anything that was dirty about
the room," he could "contact the jail" and they would "fix it"
"immediately." Goethel testified that although the room was not
sterile, neither are emergency rooms. He had never heard of
anyone from whom he had drawn blood in the jail acquiring an
infection due to the blood draw. When asked whether Dr. Mendoza
had "ever inspected the blood draw location at the jail,"
Goethel stated, "Not to my knowledge."
¶21 The blood draw kits in the room are also clean. The
kits contain a "butterfly needle" that is sterile "[w]hile it is
still in the package." The needle "comes packaged" and "no one
else has had [the] needle in them." When the package is opened,
10
No. 2015AP656-CR
that "let[s] air in and that means it's no longer sterile," but
"that would be true in the emergency room as well."
¶22 Goethel agreed with the State that he had "been doing
continual training on how to draw blood" and explained that he
had been trained to draw blood by "several . . . individuals,"
including
[D.C.] from then known as the Madison Area
Technical College, former captain [J.H.] who was our
former training director. Additionally [D.P.], who is
a former critical care paramedic on our staff, and
then my appropriate training via the Madison Area
Technical College, to which I'm licensed as an
intermediate technician, and then also my training as
an advanced EMT.
Goethel testified that all of the classes are certified.
¶23 Goethel set forth the procedures for drawing blood
which he had been trained to follow in some detail:
Initially I start -- within the blood draw kit
itself there are a couple of glass, we call them
Vacutainer tubes, it's a vacuum-charged glass tube,
those are held off to the side until we're completely
ready to draw.
I will have affixed a tourniquet usually above
what's known as the antecubital space where you think
of the inside of your elbow. That's tightened down.
The space, the antecubital space, will be cleansed
with an alcohol-free swab in what's known as an
aseptic technique.
Once I have found a suitable location to make the
venipuncture with a 21-gauge butterfly needle, it's
placed into the vein. I receive confirmation that it
is in the vein by a small amount of blood in what's
known as a flash chamber.
Once I have that confirmation, I apply the vacuum
tube to the back end of the needle and tubing
assembly, allow them to fill as much as they can with
11
No. 2015AP656-CR
the blood. I then invert them upright and upside down
several times to mix the powder that's within the
tube.
Once that has been completed, I generally hold
onto the tubes, remove the tourniquet, and then place
a cotton ball or piece of gauze over the site of the
venipuncture, remove the needle and tape the dressing
down.
Following that the tubes are generally sealed
with a two-sticker seal and I then turn over custody
of them to the arresting officer.
This is "the same type of procedure[] they use to draw blood in
the emergency room." Indeed, Goethel agreed that "the emergency
room technicians [are] trained at some of the same places
[Goethel] is," at least "to [his] knowledge." The defense asked
Goethel, "Other than the letter that has been introduced, are
there other instructions or protocols from Dr. Mendoza that you
follow?" Goethel's response was, "Regarding the blood draw, I
would have to check. I believe there are."
¶24 Goethel was asked whether he "ever had anyone have any
difficulties while [he] [was] drawing their blood in the blood
draw room at the jail." Goethel replied "[y]es" and explained
that "[A]fter my initial attempt on one occasion, I was
preparing for a second venipuncture, [and] the subject, a male
subject, lost consciousness and myself and one or two jail
deputies assisted him to the floor. I immediately requested the
jail staff page for an ambulance." The individual recovered
and, as far as Goethel was aware, did so without any
difficulties.
12
No. 2015AP656-CR
¶25 The State questioned Goethel about the specific blood
draw that had occurred in this case. Goethel talked to Deputy
Schlough prior to drawing Kozel's blood. Deputy Schlough
explained that Kozel "had been read the Informing the Accused
and that [Goethel] could proceed with the blood draw." Goethel
typically received this confirmation before performing a blood
draw. Kozel was cooperative, and Goethel's report did not
"indicate anything out of the ordinary." Before drawing the
blood, Goethel did not "speak with [Kozel] about any health
issues that [Kozel] ha[d]" and did not ask Kozel "if he was on
any medication." Goethel "didn't verify [Kozel's] medical
status at all." Goethel drew the blood according to the
procedures explained above. Goethel did not "have any problems
with [Kozel's] blood draw." When asked if Kozel had any
problems, Goethel replied, "Not that I recall." Goethel had not
heard that the defendant had had "any issues concerning
infection or anything."
¶26 After hearing all of this testimony, the circuit court
orally denied Kozel's motion pertaining to the blood draw that
occurred.
¶27 On January 9, 2015, Kozel pleaded no contest to one
count of operating a motor vehicle while intoxicated, contrary
to Wis. Stat. § 346.63(1)(a) (2013-14), second offense, see Wis.
Stat. § 346.65(2)(am)2. (2013-14). The court sentenced Kozel to
17 days in the Sauk County jail with Huber privileges, assessed
a fine and costs, ordered Kozel's driving privilege revoked for
13
No. 2015AP656-CR
15 months, and specified requirements for reinstatement of that
privilege.
¶28 On March 30, 2015, Kozel filed a notice of appeal. On
November 12, 2015, the court of appeals reversed the circuit
court's judgment of conviction and remanded the case to the
circuit court to suppress the evidence obtained from Kozel's
blood. Kozel, unpublished slip op., ¶1. The court of appeals
concluded that "the evidence was insufficient to establish that
the EMT [who drew Kozel's blood] was operating under the
direction of a physician." Id., ¶14. Given that conclusion,
the court of appeals found it unnecessary to analyze whether the
blood draw was constitutionally reasonable and thus did not do
so. Id. (citing Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W.
663 (1938)).
¶29 On December 11, 2015, the State filed a petition for
review in this court. On March 7, 2016, this court granted the
petition.
III. STANDARD OF REVIEW
¶30 In cases involving review of decisions on motions to
suppress evidence, this court "review[s] the circuit court's
findings of historical fact under a deferential standard,
upholding them unless they are clearly erroneous," then
"independently appl[ies] constitutional principles to those
facts." State v. Tullberg, 2014 WI 134, ¶27, 359 Wis. 2d 421,
857 N.W.2d 120 (quoting State v. Robinson, 2010 WI 80, ¶22, 327
Wis. 2d 302, 786 N.W.2d 463).
14
No. 2015AP656-CR
¶31 This case also necessitates "interpretation and
application" of a statute, matters "present[ing] questions of
law that we review de novo while benefiting from the analyses of
the court of appeals and circuit court." Journal Times v.
Racine Bd. of Police & Fire Comm'rs, 2015 WI 56, ¶42, 362
Wis. 2d 577, 866 N.W.2d 563 (quoting 118th St. Kenosha, LLC v.
DOT, 2014 WI 125, ¶19, 359 Wis. 2d 30, 856 N.W.2d 486).
IV. ANALYSIS
¶32 We need address only two issues in this case: (1)
whether Goethel was a "person acting under the direction of a
physician" when he drew Kozel's blood, Wis. Stat.
§ 343.305(5)(b); and (2) whether Kozel's blood was drawn in a
constitutionally reasonable manner. We now analyze these
questions.4
A. Whether Goethel Was a Person Acting Under the
Direction of a Physician When He Drew Kozel's Blood
¶33 Wisconsin Stat. § 343.305, "known as the implied
consent law," Village of Elm Grove v. Brefka, 2013 WI 54, ¶19,
348 Wis. 2d 282, 832 N.W.2d 121, amended by 2013 WI 86, 350
4
The State argues that suppression is not required even if
Goethel did not comply with Wis. Stat. § 343.305(5)(b), as long
as the blood draw that occurred was constitutionally reasonable.
We need not resolve that issue in light of our conclusions
today. See Walworth State Bank v. Abbey Springs Condo. Ass'n,
Inc., 2016 WI 30, ¶13 n.7, 368 Wis. 2d 72, 878 N.W.2d 170
("Typically, an appellate court should decide cases on the
narrowest possible grounds." (quoting Maryland Arms Ltd. P'ship
v. Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300, 786 N.W.2d 15)).
This opinion should not be read to address the issue.
15
No. 2015AP656-CR
Wis. 2d 724, 838 N.W.2d 87, governs the testing of a motorist's
"breath, blood or urine, for the purpose of determining the
presence or quantity in his or her blood or breath, of alcohol,
controlled substances, controlled substance analogs or other
drugs, or any combination of alcohol, controlled substances,
controlled substance analogs and other drugs." Wis. Stat.
§ 343.305(2). We examine a "single, narrow aspect of the
procedures set forth in the implied consent law," Brefka, 348
Wis. 2d 282, ¶19, namely the set of individuals authorized to
draw blood under the statute.
¶34 Section 343.305(5)(b) provides in relevant part:
Blood may be withdrawn . . . to determine the
presence or quantity of alcohol, a controlled
substance, a controlled substance analog or any other
drug, or any combination of alcohol, controlled
substance, controlled substance analog and any other
drug in the blood only by a physician, registered
nurse, medical technologist, physician assistant or
person acting under the direction of a physician.
Wis. Stat. § 343.305(5)(b) (emphasis added).5 The State argues
that this requirement is fulfilled because Goethel drew blood
5
The legislature recently amended the language at issue in
this case. See 2013 Wis. Act. 224, § 3. The statute now reads,
in relevant part:
Blood may be withdrawn . . . to determine the
presence or quantity of alcohol, a controlled
substance, a controlled substance analog, or any other
drug, or any combination of alcohol, controlled
substance, controlled substance analog, and any other
drug in the blood only by a physician, registered
nurse, medical technologist, physician assistant,
phlebotomist, or other medical professional who is
(continued)
16
No. 2015AP656-CR
under the direction of Dr. Mendoza. Kozel contends that the
evidence introduced by the State was insufficient to establish
compliance with the statute. There appears to be no dispute,
nor any reason to dispute, that Goethel is a "person" and that
Dr. Mendoza is a "physician" within the meaning of
§ 343.305(5)(b). Thus, the only question is whether Goethel was
"acting under the direction" of Dr. Mendoza when he drew Kozel's
blood. We conclude that the evidence is sufficient to show that
Goethel was a "person acting under the direction of a
physician." Id.
¶35 "[W]e have repeatedly held that statutory
interpretation 'begins with the language of the statute. If the
meaning of the statute is plain, we ordinarily stop the
inquiry.' Statutory language is given its common, ordinary, and
accepted meaning, except that technical or specially-defined
words or phrases are given their technical or special
definitional meaning." State ex rel. Kalal v. Circuit Court for
Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110
(citations omitted) (quoting Seider v. O'Connell, 2000 WI 76,
¶43, 236 Wis. 2d 211, 612 N.W.2d 659). The court of appeals
below relied on a definition of "direction" taken from Webster's
Third New International Dictionary: "guidance or supervision of
action, conduct, or operation." Kozel, unpublished slip op.,
authorized to draw blood, or person acting under the
direction of a physician.
Wis. Stat. § 343.305(5)(b) (2013-14) (emphasis added).
17
No. 2015AP656-CR
¶13 (quoting Direction, Webster's Third New International
Dictionary 640 (1993)). This definition is adequate for our
purposes.
¶36 The evidence below showed that Dr. Mendoza, the
medical "director" of BDAS of at least seven years, specifically
"authorized a standing order" for BDAS EMT intermediate
technicians such as Kozel to perform blood draws when requested
to do so by law enforcement. A "standing order" is "an
instruction or prescribed procedure in force permanently or
until specifically changed or canceled." Standing order,
Webster's Third New International Dictionary 2224 (1993).
Dr. Mendoza's authorization was formalized in a writing which
also contained his confirmation that the EMTs had "completed
extensive training regarding the procedures and legalities of
obtaining blood draws." Finally, Goethel was able to contact
Dr. Mendoza if necessary when performing a blood draw.
¶37 This evidence demonstrates that BDAS EMTs are acting
under Dr. Mendoza's direction. The concept of "direction"
reasonably contemplates varying degrees of proximity between a
director and the person whose actions he or she guides rather
than a single, set relationship applicable in all cases. Had
the legislature envisioned only one manner of "direction," it
would have spelled out the specific procedures that a physician
and the person he or she directs must follow to meet that
requirement. See State v. Penzkofer, 184 Wis. 2d 262, 266, 516
N.W.2d 774 (Ct. App. 1994) ("[T]he legislature could have chosen
to require the test to be taken by or taken in the presence of a
18
No. 2015AP656-CR
physician, but it did not."); cf., e.g., Longview Fibre Co. v.
Rasmussen, 980 F.2d 1307, 1314 (9th Cir. 1992) (dismissing
petition for review) ("Had Congress intended a more general
meaning, it would have used more general words.").
¶38 If Dr. Mendoza had trained the BDAS EMTs himself,
ordered each blood draw on a case-by-case basis, and personally
observed each individual blood draw, there would likely be no
dispute that the EMTs were acting under Dr. Mendoza's direction.
But blood draws are "routine" affairs, Schmerber v. California,
384 U.S. 757, 771 n.13 (1966) (quoting Breithaupt v. Abram, 352
U.S. 432, 436 (1957)), and nothing in Wis. Stat. § 343.305(5)(b)
prevents a physician from supervising such standard procedures
in a more streamlined fashion. Thus, instead of training the
EMTs on his own, Dr. Mendoza satisfied himself that the EMTs had
"completed extensive training regarding the procedures and
legalities of obtaining blood draws" and made that fact known to
others in his writing. Instead of ordering each blood draw on a
case-by-case basis, Dr. Mendoza issued a standing order
authorizing EMTs to draw blood when requested to do so by law
enforcement. And instead of personally observing each
individual blood draw, Dr. Mendoza allowed EMTs to perform blood
draws on their own, but made himself accessible by telephone
should any problems arise.
¶39 The testimony below leaves no doubt that it is
Dr. Mendoza who is in charge of blood-drawing activities
conducted by BDAS EMTs. To require more evidence than what the
State provided below to establish that Goethel was acting under
19
No. 2015AP656-CR
the direction of Dr. Mendoza would be to require a specific type
or degree of direction where the statute at issue does not so
specify. "We will not read into the statute a limitation the
plain language does not evidence." Cty. of Dane v. LIRC, 2009
WI 9, ¶33, 315 Wis. 2d 293, 759 N.W.2d 571. The court of
appeals erred in concluding otherwise.
B. Whether Kozel's Blood Was Drawn in a Constitutionally
Reasonable Manner
¶40 The Fourth Amendment to the United States
Constitution, applicable to the states though the Fourteenth
Amendment, e.g., State v. Kramer, 2009 WI 14, ¶18, 315
Wis. 2d 414, 759 N.W.2d 598 (citing Mapp v. Ohio, 367 U.S. 643
(1961)), provides:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and
the persons or things to be seized.
U.S. Const. amend. IV.6 "Virtually any 'intrusio[n] into the
human body' will work an invasion of '"cherished personal
security" that is subject to constitutional scrutiny.'"
Maryland v. King, 569 U.S. ___, 133 S. Ct. 1958, 1969 (2013)
6
"We have historically interpreted the Wisconsin
Constitution's [Article I, § 11] protections in this area
identically to the protections under the Fourth Amendment as
defined by the United States Supreme Court." State v. Dearborn,
2010 WI 84, ¶14, 327 Wis. 2d 252, 786 N.W.2d 97 (citing State v.
Kramer, 2009 WI 14, ¶18, 315 Wis. 2d 414, 759 N.W.2d 598). We
will reference only the Fourth Amendment in this opinion.
20
No. 2015AP656-CR
(alteration in original) (citation omitted) (quoting Schmerber,
384 U.S. at 770; then quoting Cupp v. Murphy, 412 U.S. 291, 295
(1973)). Consistent with this principle, "the taking of a blood
sample . . . is a search" under the Fourth Amendment.
Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 2173
(2016).
¶41 Nevertheless, "[t]he Fourth Amendment's proper
function is to constrain, not against all intrusions as such,
but against intrusions which are not justified in the
circumstances, or which are made in an improper manner." King,
133 S. Ct. at 1969 (quoting Schmerber, 384 U.S. at 768).
¶42 In Schmerber the Supreme Court assessed the
constitutional reasonableness of a blood draw of a drunk driver,
characterizing the applicable issues as "whether the police were
justified in requiring petitioner to submit to the blood test,
and whether the means and procedures employed in taking his
blood respected relevant Fourth Amendment standards of
reasonableness." Schmerber, 384 U.S. at 758-59, 768. After
concluding that a warrant was not required in that case, id. at
768-71, the Supreme Court briefly examined the State's "means of
testing" the defendant's blood-alcohol content and "manner" in
which "the test was performed." Id. at 771-72. With regard to
the State's "means of testing," the Supreme Court explained:
Extraction of blood samples for testing is a highly
effective means of determining the degree to which a
person is under the influence of alcohol. Such tests
are a commonplace in these days of periodic physical
examination and experience with them teaches that the
quantity of blood extracted is minimal, and that for
21
No. 2015AP656-CR
most people the procedure involves virtually no risk,
trauma, or pain.
Id. at 771 (citation omitted). In a footnote, the court
remarked:
The blood test procedure has become routine in
our everyday life. It is a ritual for those going
into the military service as well as those applying
for marriage licenses. Many colleges require such
tests before permitting entrance and literally
millions of us have voluntarily gone through the same,
though a longer, routine in becoming blood donors.
Id. at 771 n.13 (quoting Breithaupt, 352 U.S. at 436). With
regard to the "manner" in which "the test was performed," the
Court concluded:
[T]he record shows that the test was performed in a
reasonable manner. Petitioner's blood was taken by a
physician in a hospital environment according to
accepted medical practices. We are thus not presented
with the serious questions which would arise if a
search involving use of a medical technique, even of
the most rudimentary sort, were made by other than
medical personnel or in other than a medical
environment——for example, if it were administered by
police in the privacy of the stationhouse. To
tolerate searches under these conditions might be to
invite an unjustified element of personal risk of
infection and pain.
Id. at 771-72.
¶43 Kozel argues that certain material differences between
the blood draw that occurred in this case and the blood draw
that occurred in Schmerber require suppression of evidence.
Specifically, Kozel simply maintains that the State failed to
establish that the manner in which the State drew his blood——by
an EMT in a jail rather than "by a physician in a hospital
22
No. 2015AP656-CR
environment according to accepted medical practices," id. at
771——was constitutionally reasonable. We reject this argument.7
¶44 First, it was not unreasonable for an EMT, as opposed
to a physician, to draw Kozel's blood. We need not resolve the
parties' dispute over whether Goethel technically qualifies as a
"medical professional" or a "paraprofessional." The important
point for constitutional purposes is that the evidence
demonstrated that Goethel was thoroughly trained and experienced
in properly drawing blood. Additionally, if any medical issues
arose for which Goethel was not equipped, Goethel had access to
physicians who could assist. The Schmerber Court explained with
regard to blood testing that "for most people the procedure
involves virtually no risk, trauma, or pain." Id. at 771. Its
concern——though it did not decide the issue——was that procedures
"made by other than medical personnel . . . might . . . invite
an unjustified element of personal risk of infection and pain."
Id. at 772. We fail to see how performance of such an everyday
7
Kozel does not argue that other differences between the
circumstances in Schmerber and those in this case require
suppression, and we do not comment on them. See generally
Winston v. Lee, 470 U.S. 753, 760-63 (2013) (discussing the list
of items considered by the Supreme Court in Schmerber v.
California, 384 U.S. 757 (1966), as relevant to the
constitutionality of the blood test that occurred in that case,
including "the ordinary requirements of the Fourth Amendment,"
"the extent to which the procedure may threaten the safety or
health of the individual," "the extent of intrusion upon the
individual's dignitary interests in personal privacy and bodily
integrity," and "the community's interest in fairly and
accurately determining guilt or innocence").
23
No. 2015AP656-CR
procedure by a licensed, certified EMT unjustifiably increases
such a risk. The evidence presented showed the opposite. Nor
do we conclude that the State's failure to introduce specific
protocols for drawing blood mandates a different result, where
Goethel testified as to his training in drawing blood, the
specific procedures he was taught to follow, and the fact that
he followed those procedures in this case. The circuit court's
finding that Kozel's blood was drawn "in accordance with
medically accepted procedures" is not clearly erroneous.
¶45 Second, it was not unreasonable for the blood draw to
occur in the non-medical setting of the jail. As the trial
court explained, the evidence indicated that the room in which
Kozel's blood was drawn "was clean and as clean as a hospital
emergency room." Further, Goethel used a new blood draw kit
containing a sterile needle. While some non-medical settings——
indeed, some jails——might "invite an unjustified element of
personal risk of infection and pain," Schmerber, 384 U.S. at
772, the evidence presented by the State dispelled any such
fears as to the particular room in the particular jail at issue.
See State v. Daggett, 2002 WI App 32, ¶14, 250 Wis. 2d 112, 640
N.W.2d 546 ("[W]e reject Daggett's assertion that blood draws
must take place in a hospital setting in order to be
constitutionally reasonable. Although Schmerber urged caution,
it did not categorically reject the possibility that a blood
draw could take place in a non-medical setting." (citation
omitted)).
24
No. 2015AP656-CR
¶46 Finally, we would be remiss if we failed to mention
the lack of evidence that Kozel ever objected to the particular
circumstances of the blood draw. See Schmerber, 384 U.S. at 771
("Petitioner is not one of the few who on grounds of fear,
concern for health, or religious scruple might prefer some other
means of testing . . . ."); cf. Tullberg, 359 Wis. 2d 421, ¶31
("A warrantless, nonconsensual blood draw of a suspected drunken
driver complies with the Fourth Amendment if: . . . (4) the
suspect did not reasonably object to the blood draw.").
¶47 In sum, the blood draw that occurred in this case was
constitutionally reasonable. See, e.g., State v. Johnston, 336
S.W.3d 649, 651-53, 655, 664 (Tex. Crim. App. 2011) (blood draw
in "blood-draw room" at police station by police officer
certified as an intermediate EMT assisted by police officer
certified as a basic EMT held constitutionally reasonable),
cert. denied, 132 S. Ct. 212 (2011).
V. CONCLUSION
¶48 We conclude that the EMT who drew Kozel's blood was a
"person acting under the direction of a physician," Wis. Stat.
§ 343.305(5)(b), and that Kozel's blood was drawn in a
constitutionally reasonable manner. Accordingly, we reverse the
decision of the court of appeals.
By the Court.-The decision of the court of appeals is
reversed.
25
No. 2015AP656-CR.awb
¶49 ANN WALSH BRADLEY, J. (dissenting). As the State
has acknowledged, this case in essence presents a question of
sufficiency of evidence.
¶50 Because we are a law developing court setting
precedent for the entire state, we generally do not accept for
review sufficiency of evidence cases because they often are tied
to the unique facts of a particular case and thus have very
limited precedential value.
¶51 Likewise, we generally eschew cases of statutory
interpretation where the statute has subsequently changed
because of the limited application of the decision.
Nevertheless, in this case the majority tackles both
circumstances and reverses the unpublished decision of the court
of appeals.
¶52 The petitioner, State of Wisconsin, asserts that the
court of appeals erred when it determined that the State failed
to present sufficient evidence to show that the EMT was a
"person acting under the direction of a physician" as required
by statute.1 It further contends that under the facts presented
it has demonstrated that the blood draw was constitutionally
reasonable under the Fourth Amendment of the United States
Constitution.
¶53 The majority agrees with the State. Majority op.,
¶¶34, 48. However, it missteps in its analysis when construing
1
Wis. Stat. § 343.305(5)(b) (2011-12). All subsequent
references to the Wisconsin Statutes are to the 2011-12 version
unless otherwise indicated.
1
No. 2015AP656-CR.awb
the former statute by conflating the terms "direction" and
"authorization," thereby sub silentio writing into the statute a
word not used or intended by the legislature.
¶54 In determining that Kozel's blood draw satisfied
statutory requirements and was constitutionally reasonable, the
majority also errs when it excuses the failure of the State to
present evidence sufficient to demonstrate that the EMT in this
case was acting under the direction of a physician.
¶55 Contrary to the majority, I conclude that there is
insufficient evidence to determine that the EMT-Intermediate
technician who drew Kozel's blood was a "person acting under the
direction of a physician" as required by Wis. Stat.
§ 343.305(5)(b). Likewise, I determine that Kozel's blood draw
was not constitutionally reasonable based upon the facts of
record.
¶56 I would affirm the court of appeals and remand to the
circuit court for further proceedings. Accordingly, I
respectfully dissent.
I
¶57 Wisconsin's implied consent statute authorizes legal
blood draws in order to obtain evidence of intoxication.
Section § 343.305(5)(b) provides in relevant part that "[b]lood
may be withdrawn . . . to determine the presence or quantity of
alcohol . . . only by a physician, registered nurse, medical
technologist, physician assistant or person acting under the
direction of a physician." In this case, Kozel's blood was
2
No. 2015AP656-CR.awb
drawn by an EMT-Intermediate Technician ("the EMT") in a pre-
booking room in the Sauk County Jail.
¶58 The State asserts that there was sufficient evidence
to support the requirement that the EMT was a "person acting
under the direction of a physician" pursuant to Wis. Stat.
§ 343.305(5)(b). The majority embraces the State's position.
¶59 In interpreting the statute, the majority relies on a
plain meaning analysis of the term "direction." Majority op.,
¶35. Initially it follows the court of appeals approach,
adopting the dictionary definition which requires "guidance or
supervision of action, conduct or operation." Id. However, it
rejects the court of appeals conclusion that there is
insufficient evidence in this record to show that the EMT was a
"person acting under the direction of a physician." Majority
op., ¶¶35-39 (citing Webster's Third New International
Dictionary 640 (1993)).
¶60 The majority reasons that "[t]he concept of
'direction' reasonably contemplates varying degrees of proximity
between a director and the person whose actions he or she guides
rather than a single, set relationship applicable in all cases."
Majority op., ¶37. I agree.
¶61 However, it proceeds next to set up a strawman only to
subsequently knock it down when it concludes that "[h]ad the
legislature envisioned only one manner of 'direction,' it would
have spelled out the specific procedures that a physician and
the person he or she directs must follow to meet that
requirement." Id. According to the majority, "[w]e will not
3
No. 2015AP656-CR.awb
read into the statute a limitation the plain language does not
evidence." Majority op., ¶39 (quoting Cty. of Dane v. LIRC,
2009 WI 9, ¶33, 315 Wis. 2d 293, 759 N.W.2d 571).
¶62 No one even attempts to advance an argument that the
statute should be read in such a limited fashion. Not the
defendant, not the court of appeals and certainly not this
dissent.
¶63 Rather, what needs to be done, and what the majority
skirts by setting up the fabricated argument, is an examination
of whether the evidence presented here demonstrates that the EMT
was acting under the physician’s direction, that is, under the
"guidance or supervision of action, conduct or operation."
¶64 Although this court often resorts to using dictionary
definitions when engaging in statutory construction, we also
often find guidance by looking at how other courts have defined
the same statutory language. In People v. Gregg, the Illinois
court of appeals interpreted the statutory phrase "acting under
the direction of a physician" in a similar context to this case.2
526 N.E.2d 537, 539 (Ill. App. Ct. 1988).
¶65 The Illinois court of appeals defined "acting under
the direction" of a physician to mean that:
2
77 Ill. Adm. Code 510.110(a)(2) (1985) provides in
relevant part:
The blood sample shall be collected per venipuncture
by a physician licensed to practice medicine by a
registered nurse or by a trained phlebotomist acting
under the direction of a licensed physician (emphasis
added).
4
No. 2015AP656-CR.awb
[W]ork is performed under the guidance and direction
of a supervisor who is responsible for the work, who
plans work and methods, who is available on short
notice to answer questions and deal with problems that
are not strictly routine, who regularly reviews the
work performed, and who is accountable for the
results.
Id. (citing 77 Ill. Am. Code 300.330, 330.330, 350.330, 370.240,
390.330 (1985)).
¶66 The physician in Gregg was not present when a trained
phlebotomist performed a blood draw, but was "responsible for
supervising emergency room procedures." Id. at 538. Thus,
Gregg concluded that "[i]n light of the complex and extensive
procedures already required in performing a blood analysis," a
trained phlebotomist acting under a physician's supervision
sufficiently ensured the accuracy and uniformity of blood
analysis. Id. at 539.
¶67 Armed with the dictionary definition of "direction"
and further informed by Gregg's interpretation of the statutory
phrase, I normally would turn next to an examination of whether
the evidence here is sufficient to meet the statutory directive.
¶68 Yet, I would be remiss to ignore an additional
impediment in the majority’s statutory analysis. It missteps
when it conflates the statutory term "direction" with a
distinctly different term "authorization."
¶69 As set forth more fully above, "direction" requires
guidance and supervision. The plain meaning of "authorize" is
defined as "to give permission for (something); sanction."3
3
The majority does not include the definition of
"authorize" in its opinion.
5
No. 2015AP656-CR.awb
American Heritage Dictionary of the English Language 120 (5th
ed. 2011). Despite this distinction between "direction" and
"authorization," in determining that the EMT was acting under
the direction of a physician, the majority relies almost
entirely on the fact that he was authorized by Dr. Mendoza to
draw blood. See e.g., majority op., ¶36 ("The evidence below
showed that Dr. Mendoza, the medical 'director' of BDAS of at
least seven years, specifically 'authorized a standing order'
for BDAS EMT intermediate technicians such as Kozel to perform
blood draws when requested to do so by law
enforcement. . . . Dr. Mendoza's authorization was formalized in
writing . . . .") (emphasis added); see also majority op., ¶¶2,
15, 38.4
¶70 The majority relies upon an August 21, 2009 letter
written by Dr. Mendoza, the Medical Director for the Baraboo
District Ambulance Service, which authorized the EMT to perform
the blood draws at the request of law enforcement.
Specifically, Dr. Mendoza's letter "authorized a standing order
for the EMT-Paramedics and approved EMT-Intermediate Technicians
authority to draw legal blood draws at the request of law
4
Majority op., ¶2 ("The EMT was authorized in writing by a
physician to draw blood when asked to do so by law
enforcement."); majority op., ¶15 ("The State introduced into
evidence . . . '[A] letter from Dr. Mendoza to our staff, our
administration stating that the authorized EMT paramedics and
intermediate technicians may perform legal blood draws.'");
majority op., ¶38 (" . . . Dr. Mendoza issued a standing order
authorizing EMTs to draw blood when requested to do so by law
enforcement.").
6
No. 2015AP656-CR.awb
enforcement officers." It further states that "[t]he Baraboo
District Ambulance Services EMT-Paramedics and EMT-Intermediate
Technicians are acting under the direction of my physician
license."
¶71 As the court of appeals in this case explained,
evidence that an EMT was authorized to act under a physician's
license is not evidence that the EMT was acting under the
physician's direction. State v. Kozel, No. 2015AP656-CR,
unpublished slip op., ¶13 (Wis. Ct. App. Nov. 12, 2015). Dr.
Mendoza's letter authorizes EMTs to conduct blood draws because
it grants them the authority to do so at the request of law
enforcement. However, it tells us nothing about the physician’s
guidance or supervision of the EMT's actions when conducting a
blood draw.
¶72 The distinction between "directed" and "authorized" is
further supported by recent changes to the statutory provision
at issue here. Pursuant to 2013 WI Act 224, the legislature
amended section 343.305(5)(b) to include medical professionals
who are authorized to draw blood as a distinct category from a
"person acting under the direction of a physician." Under the
amended statute, a blood draw may now be performed by authorized
medical professionals:
Blood may be withdrawn . . . to determine the presence
or quantity of alcohol . . . only by a physician,
registered nurse, medical technologist, physician
assistant, phlebotomist, or other medical professional
who is authorized to draw blood, or person acting
under the direction of a physician.
Wis. Stat. § 343.305(5)(b) (2013-14) (emphasis added).
7
No. 2015AP656-CR.awb
¶73 According to the Wisconsin Legislative Council Act
Memorandum for 2013 Wis. Act 224, the 2011-2012 version of the
statute at issue in this case provided that only individuals
"acting under the direction of a physician could draw blood."
Conversely, the amended statute now allows a phlebotomist or
other medical professional who is authorized to draw blood, in
addition to the other health care providers listed under prior
law:
Under prior law, only a physician, registered nurse,
medical technologist, physician assistant, or personal
acting under the direction of a physician could draw
blood for alcohol or controlled substance testing.
Act 224 allows a phlebotomist or other medical
professional who is authorized to draw blood, in
addition to the other health care providers listed
under prior law, to draw blood for alcohol or
controlled substance testing.
Wisconsin Legislative Council Act Memorandum for 2013 Wis. Act
224 (April 14, 2014), available at
http://docs.legis.wisconsin.gov/2013/related/lcactmemo/act224.
¶74 This statutory change suggests that the EMT in this
case, who was formerly not permitted to draw blood under the
statute unless "acting under the direction of a physician," now
may be permitted to draw blood under the statute if he qualifies
as an other medical professional who is authorized to draw
blood.
¶75 Unlike the newly amended statute, the 2011-12 version
of the statute that is the subject of our analysis here uses the
term "direction" but not the term "authorize." In conflating
the two terms in its analysis, the majority is sub silencio
8
No. 2015AP656-CR.awb
writing into the prior statute terms not then used or intended
by the legislature.
II
¶76 Perhaps because the majority conflates "direction"
with "authorization," it incorrectly concludes that there was
sufficient evidence that the EMT was acting under the direction
of a physician as required by Wis. Stat. § 343.305(5)(b). This
misstep allows the majority to disregard the lack of evidence
presented in this case in contrast to evidence deemed sufficient
in other similar cases.
¶77 In State v. Penzkofer, 184 Wis. 2d 262, 265, 516
N.W.2d 774 (Ct. App. 1994), a certified laboratory technician
performed a blood draw in a hospital, but without a physician
present in the room at the time of the blood draw. However, the
hospital pathologist testified that the technician performed
laboratory functions under his general supervision and
direction. Id.
¶78 Significantly, the physician identified a written
hospital protocol setting forth the detailed procedures that
guided a technician performing a blood draw. Id. These
procedures were reviewed and revised, and the protocol was dated
and signed by the physician. Id. The physician testified that
he did not "stand over [the technician's] shoulder" because
"[t]hen I might as well draw it myself . . . or I'm busy with
other work . . . so I couldn't be two places at one time." Id.
¶79 Considering the evidence of written procedures and
protocols that were reviewed in a hospital setting by a
physician, the Penzkofer court concluded that "the procedure
9
No. 2015AP656-CR.awb
used here meets the legislature's concern for testing in such a
manner as to yield reliable and accurate results. Id. at 266.
It explained that "[h]ospital laboratories are subject to
detailed and stringent standards in almost every aspect of their
facilities and services." Id. (citing Wis. Admin. Code § HSS
124.17). Penzkofer reasoned further that "[t]he certified lab
assistant followed a written protocol approved and kept current
by the pathologist." Id. (emphasis added).
¶80 The court of appeals concluded that "Penzkofer's
concern for safety and accuracy are addressed by those standards
as well as the procedures in place here." Id. Conversely, the
majority opinion neglects to consider how the lack of protocols
setting forth detailed procedures for performing a blood draw,
as well as the lack of detailed sanitation standards governing
blood draws at the jail, might undermine confidence in the
safety and accuracy of Kozel's blood drawn.
¶81 Additionally, unlike here, in another unpublished case
involving a blood draw performed by an EMT at the Sauk County
jail, the State presented evidence of written protocols and
procedures that guided the technician. In State v. Heath, No.
2014AP2466-CR, unpublished slip op., ¶5 (Wis. Ct. App. Sept. 15,
2016), the State introduced a letter from the paramedic program
coordinator for the Department of Health Services ("DHS") that
"approved the Baraboo District Ambulance Service's revised and
updated protocol for legal blood draws, and which authorized the
ambulance service to implement the protocol."
10
No. 2015AP656-CR.awb
¶82 Even in cases where written protocols setting forth
detailed procedures were not introduced, the State presented
significantly more evidence of direction by a physician than was
introduced here. As explained above, "direction" requires
"guidance or supervision of action." See also Gregg, 526 N.E.2d
at 539 (concluding that there was sufficient evidence of
direction when a supervising physician planed work and methods,
was available on short notice, regularly reviewed the work
performed, and was accountable for the results).
¶83 For example, in State v. Osborne, No. 2012AP2540-CR,
unpublished slip op., ¶19 (Wis. Ct. App. June 27, 2013), the EMT
testified that he was "operating under the supervision of a
physician, that a physician 'signed off' on the performance of
the EMT's duties, that the EMT was in at least monthly contact
with that physician, and that the EMT could be in contact with
that physician at any time if the need arose." Accordingly, the
blood draw was performed under the direction of a physician
because he regularly reviewed the work performed and was
accountable for the results.
¶84 Contrary to Penzkofer and other unpublished cases such
as Heath and Osbourne, the facts in the record here demonstrate
an absence of direction by a physician, including an absence of
written protocols setting forth the detailed procedures that the
EMT must follow when performing a blood draw. Here, the only
evidence introduced was the testimony of the EMT and Dr.
Mendoza's letter. When asked about whether there were written
protocols setting forth procedures for performing a blood draw,
11
No. 2015AP656-CR.awb
the EMT equivocated and could not identify any. He responded
"[r]egarding the blood draw, I would have to check."
¶85 In other cases, even where detailed procedures were
not introduced, there was testimony that the EMT had regular
contact with the supervising physician who took responsibility
for the EMT's work. See, e.g., Osborne, No. 2012AP2540-CR,
unpublished slip op., ¶19. The EMT in Osbourne testified that
he was in at least monthly contact with the supervising
physician. Id. Unlike Osbourne where the EMT testified that
the supervising physician signed off on the performance of his
duties, the EMT in this case testified that he had never spoken
to Dr. Mendoza about the letter authorizing him to conduct blood
draws. Rather, the EMT testified only that Dr. Mendoza
"occasionally show[ed] up" at his place of work. Absent from
the record is any indication that when Dr. Mendoza occasionally
appeared that the EMT had any contact whatsoever with the
physician——let alone any supervision or guidance from him.
¶86 Contrary to the majority's assertion, the facts in the
record demonstrate a total absence of guidance and supervision
necessary to support a determination that the EMT here was
acting under the direction of a physician:
 The State did not introduce into evidence any protocols or
procedures guiding blood draws by an EMT.
 There are no protocols to ensure that the jail's blood
draw room is sterile or meets the appropriate standard.
 Dr. Mendoza did not train the EMT.
12
No. 2015AP656-CR.awb
 Dr. Mendoza had never been to the jail nor inspected the
room where blood is drawn at the jail.
 Dr. Mendoza never witnessed the EMT perform any blood
draws.
 There is no evidence that Dr. Mendoza approved or
supervised the EMT's blood draw techniques on a regular or
even irregular basis.
 There is no evidence that the EMT had regular or even
irregular contact with Dr. Mendoza.
¶87 In short, no evidence was presented of any supervision
of this EMT by Dr. Mendoza, whether it be general or direct.
Additionally, there is a dearth of evidence demonstrating any
guidance by Dr. Mendoza. Thus, contrary to the majority, I
conclude that there is insufficient evidence to determine that
the EMT-Intermediate who drew Kozel's blood was a "person acting
under the direction of a physician." Wis. Stat.
§ 343.305(5)(b).
III
¶88 Given the state of the evidentiary record, I turn next
to examine whether the blood draw here was constitutionally
reasonable under the Fourth Amendment of the United States
Constitution, which provides that "[t]he right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures shall not be
violated . . . ."
¶89 In the context of a blood draw, the United States
Supreme Court has explained that "[t]he integrity of an
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individual's person is a cherished value of our society."
Schmerber v. California, 384 U.S. 757, 772 (1966). Accordingly,
the "overriding function of the Fourth Amendment is to protect
personal privacy and dignity against unwarranted intrusion by
the State." Id. at 767.
¶90 The Fourth Amendment does not prohibit all intrusions,
however, but only those which are not justified under the
circumstances or are made in an improper manner. Id. at 768.
Thus, the question in Schmerber, as in this case, was whether
"the means and procedures employed in taking [] blood respected
relevant Fourth Amendment standards of reasonableness." Id.
¶91 Relying on Schmerber, the majority contends that
"[t]he blood test procedure has become routine in our everyday
life" and "that for most people the procedure involves virtually
no risk, trauma or pain." Majority op., ¶42 (citing 384 U.S. at
771). The majority does not acknowledge, however, that the
United States Supreme Court has recently emphasized the serious
nature of a blood test.
¶92 In Birchfield v. North Dakota, 136 S. Ct. 2160, 2178
(2016), the Supreme Court explained that "[b]lood tests are a
different matter [from breath tests]. They 'require piercing
the skin' and extract a part of the subject's body." (citations
omitted). As Birchfield reasoned, although many people submit
to blood draws, "the process is not one they relish." Id.
Additionally, the Birchfield court noted that blood samples "can
be preserved and from which it is possible to extract
information beyond a simple BAC reading." Id.
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¶93 Ignoring the serious and intrusive nature of a blood
draw, the majority asserts that "[t]he important point for
constitutional purposes is that the evidence demonstrated that
[the EMT] was thoroughly trained and experienced in properly
drawing blood." Majority op., ¶44. Schmerber was explicit,
however, that "we reach this judgment only on the facts of the
present record." 384 U.S. at 772. Thus, it warned that in
other circumstances, such as a blood draw administered at a
jail, may not be constitutionally reasonable:
Petitioner's blood was taken by a physician in a
hospital environment according to accepted medical
practices. We are thus not presented with the serious
questions which would arise if a search . . . were
made by other than medical personnel or in other than
a medical environment——for example, if it were
administered by police in the privacy of the
stationhouse. To tolerate searches under these
conditions might invite an unjustified element of
personal risk of infection and pain.
Id. at 771-72.
¶94 In State v. Daggett, 2002 WI App 32, ¶¶8-15, 250
Wis. 2d 112, 640 N.W.2d 546, the Wisconsin court of appeals
addressed whether under Schmerber, a warrantless blood draw
performed by a doctor in a police booking room was reasonable
under the Fourth Amendment. The majority parses Daggett, citing
it only once for the proposition that a constitutionally
reasonable blood draw can take place in a non-medical setting.
Majority op., ¶45. It does not, however, analyze where this
case falls on the spectrum of reasonableness set forth in
Daggett.
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¶95 Daggett moved to suppress the results of the blood
test on the grounds that the blood draw was unlawful because it
took place in the county jail booking room, rather than in a
hospital. Daggett, 250 Wis. 2d 112, ¶5. The Daggett court
concluded that "the method used to take the blood sample was a
reasonable one and was performed in a reasonable manner." Id.,
¶14.
¶96 According to the Daggett court, "[r]ather than
establishing a bright-line rule, Schmerber recognized a spectrum
of reasonableness." Id., ¶15. It explained that a blood draw
by a medical professional in a medical setting is generally
reasonable, but blood withdrawn by a non-medical professional in
a non-medical setting would raise "serious questions" of
reasonableness. Id. (citation omitted). Thus, under Daggett, a
blood draw "in a jail setting may be unreasonable if it 'invites
an unjustified element of personal risk of infection and pain.'"
Id., ¶16 (citing Schmerber, 384 U.S. at 772).
¶97 Under Daggett's spectrum of reasonableness, the blood
draw here falls below the standard of anything that has
previously been determined to be reasonable. In Schmerber, the
blood draw was performed by a physician in a hospital. 384 U.S.
at 758. The blood draw in Daggett took place in a jail, but was
performed by a physician. 250 Wis. 2d 112, ¶4. In this case,
Kozel's blood draw was performed by an EMT-Intermediate in a
jail.
¶98 As such, this case represents the latter end of the
Daggett spectrum of reasonableness. Although a blood draw by an
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EMT in a jail may not be per se unreasonable, it is unreasonable
under the facts of this case. As set forth above, there is no
evidence of any written protocols or procedures in the record.
Dr. Mendoza did not train the EMT, had never witnessed him
perform a blood draw, nor had he ever approved of his blood draw
techniques.
¶99 Additionally, there are no protocols to ensure that
the jail's blood draw room is sterile. Admittedly, the EMT
testified that the pre-booking room looked clean. However, the
pre-booking room where the blood draw was administered was also
used to perform breathalyzer tests on those arrested for drunk
driving and for miscellaneous storage. According to the
evidence, Dr. Mendoza had never been to the jail let alone
inspected the pre-booking room where blood is drawn.
¶100 Other than testimony regarding the fact that jail
staff have a schedule for cleaning, which is initialed by the
cleaner and posted on the wall, there is no other evidence that
the pre-booking room in the jail meets the high sanitary
standards of a hospital. To the contrary, such an initialed and
posted cleaning schedule is akin to those found in many
department or convenience store restrooms.
¶101 For example, the Wisconsin Administrative Code
requires that hospitals maintain a sanitary environment, that
sterilizing services be available at all times, and that a
committee be established at each hospital to implement measures
to make sure infections do not spread. Wis. Admin. Code DHS
§ 124.08(2), (4)(b) and (e). The rules for jails are less
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stringent, requiring only monthly sanitation inspections. Wis.
Admin. Code DOC § 350.12(13).
¶102 It is a well-established principle that "[i]t is the
duty of courts to be watchful for the constitutional rights of
the citizen, and against stealthy encroachments thereon."
Schneckloth v. Bustamonte, 412 U.S. 218, 229 (1973) (citation
omitted). Permitting blood draws in a jail without written
protocols and procedures could erode Fourth Amendment
protections beyond what was contemplated in Schmerber and
Daggett.
¶103 Given the absence of written protocols and procedures,
the record here lacks the same evidence of safety and accuracy
present in cases in which a blood draw has been determined to be
constitutionally reasonable. Thus, I determine that the
evidentiary record is insufficient to conclude that the blood
draw administered here was performed in a constitutionally
reasonable manner.
¶104 For the reasons set forth above, I respectfully
dissent.
¶105 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
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