State v. Steven W. Heath, 2014AP2466-CR, District 4, 9/15/16 (one-judge decision; ineligible for publication); case activity (including briefs)
Heath challenges the blood draw evidence in his OWI prosecution, claiming that the paramedic who did the draw wasn’t a “person acting under the direction of a physician” as required by § 343.305(5)(b) and that the method and manner of the blood draw was not constitutionally reasonable. The court of appeals rejects his claims.
The parties stipulated to the admission of documents detailing the paramedic’s training and licensure, a letter setting out blood draw protocols, and a letter from the physician acting as medical director for the agency employing the paramedic (¶5) and that evidence disposes of Heath’s first challenge:
¶14 …I conclude that the record supports the circuit court’s determination that Gallagher was “acting under the direction of a physician,” within the meaning of Wis. Stat. § 343.305(5)(b), when she withdrew Heath’s blood. Dr. Mendoza’s letter is sufficient to demonstrate that the doctor accepted and took sufficient supervision and direction of Gallagher’s training in administering blood tests, and the letter from Dana Sechler, [Department of Health Services] paramedic program coordinator, indicates that DHS approved the blood draw protocol used by Gallagher.
Heath’s claim that there must be a “personal nexus” between the person doing the blood draw and the supervising physician isn’t supported by the unpublished case he relies on, State v. Osborne, No. 2012AP2540-CR, unpublished slip op. (WI App June 27, 2013). He also argues about the sufficiency of the evidence regarding the paramedic’s training, whether the paramedic followed DHS protocol, and whether the supervising physician’s letter authorized a blood draw in the jail. These arguments are irrelevant to the whether the paramedic was “acting under the direction of a physician,” are contradicted by the record, or both. (¶¶9-13).
Note that the meaning of “person acting under the direction of a physician” is the issue in State v. Kozel, pending in the supreme court.
Heath next argues the blood draw was unreasonable because the paramedic wasn’t a medical professional and the blood draw wasn’t performed in a medical environment. While a blood draw by a physician in a jail setting may be unreasonable if it invites an unjustified element of personal risk of infection and pain, State v. Daggett, 2002 WI App 32, ¶16, 250 Wis. 2d 112, 640 N.W.2d 546, that didn’t happen here. The record shows the paramedic had extensive, relevant training. Further, the circuit court found that the blood draw room was separated from other parts of the jail and was dedicated to performing blood draws to measure intoxication, and there’s no evidence that the blood draw room was not sufficiently sterile or that it posed an unreasonable personal risk of infection or pain. (¶17).
