State v. Patrick Kozel, 2017 WI 3, reversing an unpublished court of appeals decision, 2016AP656-CR, 1/12/16; case activity (including briefs)
Kozel, arrested for OWI-2nd and subjected to a blood draw by an Emergency Medical Technician (EMT) at a county jail, challenged the draw as violating §343.305(5)(b) (2011-12) and as unconstitutional, because it was not performed “by a physician in a hospital environment according to accepted medical practices.” ¶43, citing to Schmerber v. California, 384 U.S. 757, 771 (1966).
The 2011-12 version of 343.305(5)(b) provides that:
Blood may be withdrawn .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.
Dr. Mendoza, a physician, was the EMT’s supervisor. In 2009, Dr. Mendoza sent a letter authorizing the EMTs to draw legal blood draws at the request of law enforcement officers. He further wrote that the EMTs “are acting under the direction of my physician license.”
Dr. Mendoza did not train the EMT, did not test the EMT, and had never observed the EMT performing a blood draw at the jail. Although Dr. Mendoza also had never personally told the EMT that it was okay to draw blood at the jail, Dr. Mendoza was aware that blood draws occurred at the jail. And, the EMT could immediately contact either Dr. Mendoza or an on-duty physician should any medical issues arise during a blood draw.
The question then is whether the state presented sufficient evidence to show that the EMT was “acting under the direction” of Dr. Mendoza when he drew Kozel’s blood. The dictionary definition of “direction” is “guidance or supervision of action, conduct or operation.” See Webster’s Third New International Dictionary 640 (1993).
SCOW (majority opinion authored by J. Ziegler) holds that an EMT’s blood draw at a jail was “under the direction of a physician,” when the physician issued a standing authorization, confirmed that the EMT had completed training, and was available to be contacted if any issues arose. The Court also found that the routine blood draw conducted in a clean room at the jail was constitutionally reasonable.
In reversing the court of appeals, SCOW holds:
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 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.” ¶39.
A dissent, authored by Justice A.W. Bradley, and joined by J. Abrahamson, asserts that the majority opinion conflates the terms “direction” and “authorization” and would hold that the evidence established that while the EMT was authorized by Dr. Mendoza to draw blood, the EMT was not acting under the doctor’s direction. (Dissent at ¶53, ¶72) Further support for distinguishing between the terms can be found in recent changes to the statute at issue. The amended statute added the highlighted language:
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.
As noted above, SCOW also held that the blood draw was constitutionally reasonable. ¶47. The EMT was thoroughly trained and experienced, had the ability to contact physicians if there was a need for help, and the room “was … as clean as a hospital emergency room.” ¶¶44-45.
The dissent at ¶97-99 would hold that the blood draw, under these particular facts, fell short of what is reasonable. “[T]here 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.”
Note: due to the change in statutory language, the effect of SCOW’s holding that the EMT acted “under the direction of the physician” will be extremely limited.
