At Malnory’s trial for operating with a prohibited alcohol content, her lawyer failed to object to the admission of the “Blood/Urine Analysis” form completed at the time of her blood draw. She argues this was deficient performance because the form is testimonial, and admitting it without the testimony of the person who completed it violates her confrontation rights. Maybe so, says the court of appeals, but even if that’s true there was no prejudice.
The Blood/Urine Analysis form, which accompanies the specimen to the lab for testing, includes: information identifying the person whose blood or urine is being collected; the officer’s identifying information; the identity of the person taking the specimen; information about the alleged offense; the type of specimen collected; the time and date of collection; and a notation the person taking the specimen is “acting under the direction of physician.” (¶¶4, 11-12).
It is the last bit of information that Malnory is focused on. Admitting the form without calling the phlebotomist who prepared it, she says, deprived her of the right to challenge whether the phlebotomist was authorized to take her blood. (¶14). Assuming that’s the case, it wasn’t prejudicial:
¶15 Wisconsin Stat. § 343.305(5)(b) provides that a person arrested for OWI or PAC may have blood drawn “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.” It is true that § 343.305(5)(b) requires that only qualified persons draw a defendant’s blood for evidentiary purposes. However, the statute does not specify the manner for establishing that qualification. The statute also does not expressly require attendance of the person who drew the blood as a witness at trial. Accordingly, I look to the evidence presented at Malnory’s trial to determine whether a jury could reasonably conclude that Malnory’s blood was drawn by a qualified individual.
¶16 Deputy Marten testified at trial that the blood draw took place at St. Joseph’s Hospital by a “phlebotomist” and that the “phlebotomist,” Pulham, used a blood screening kit provided by the State. Deputy Marten testified that he observed the “phlebotomist” unseal the blood kit, that he witnessed the “phlebotomist” draw a sample of Malnory’s blood into two vials, and that he observed the “phlebotomist” place the vials into the blood kit along with the completed Blood/Urine Analysis form and seal the kit. Deputy Marten testified that after the “phlebotomist” sealed the blood kit, Marten took possession of the blood kit until he turned it over to the Wood County Sheriff’s Department for “mail processing.”
¶17 I conclude that Deputy Marten’s testimony sufficiently established that Malnory’s blood sample was taken in a hospital by a phlebotomist. ….
The deputy’s evidence is, of course, the same allegedly testimonial hearsay that is on the form; it’s just presented orally rather than in writing. So why the deputy’s testimony solves the problem is a mystery. On top of that the court of appeals uses the sufficiency of the evidence standard to resolve the prejudice prong of an ineffective assistance of counsel claim. As the supreme court very recently reminded us, the Strickland v. Washington prejudice test “is distinct from a sufficiency of the evidence test and we confirm that a defendant need not prove the outcome would ‘more likely than not’ be different in order to establish prejudice in ineffective assistance cases.” State v. Sholar, 2018 WI 53, ¶¶44-46, 381 Wis. 2d 560, 912 N.W.2d 89.
That said, had trial counsel objected and been sustained, the blood test results would have been inadmissible and the prohibited-alcohol charge unsupportable. But Malnory was also charged with and found guilty of OWI, and the evidence leading to her arrest before the blood draw is unaffected by whether the person who drew her blood was authorized to do so. The summary of the pre-arrest evidence (¶¶2-3) makes it hard to see why the putatively inadmissible evidence about the blood test results would undermine one’s confidence in the OWI verdict.