State v. Patrick K. Kozel

• Court: Wisconsin Supreme Court
• Decided: January 12, 2017
• Docket: 2015AP000656-CR
• Status: Published

Opinion

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 Sarah Schmeiser. 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unpublished decision of the court of appeals, State v. Kozel,

No. 2015AP656-CR, unpublished slip op.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unpublished slip op., ¶1.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

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.

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

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

13 No. 2015AP656-CR.awb

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.

14 No. 2015AP656-CR.awb

¶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.

15 No. 2015AP656-CR.awb

¶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

16 No. 2015AP656-CR.awb

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

17 No. 2015AP656-CR.awb

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

¶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

¶105 I am authorized to state that Justice SHIRLEY S.

ABRAHAMSON joins this dissent.

18 No. 2015AP656-CR.awb