McDonald was arrested for OWI and taken to the county jail, where his blood was drawn by a paramedic employed by the city’s ambulance service. Contrary to McDonald’s claims, his blood draw was constitutionally reasonable and the paramedic who performed the blood draw was a “person acting under the direction of a physician,” as required by § 343.305(5)(b).
For a blood draw to be constitutionally permissible, it must be “performed in a reasonable manner,” State v. Daggett, 2002 WI App 32, ¶7, 250 Wis. 2d 112, 640 N.W.2d 546; Schmerber v. California, 384 U.S. 757, 771 (1966). There is a “spectrum” of reasonableness running from a blood draw by a medical professional in a medical setting, which is generally reasonable, to one done by a non-medical professional in a non-medical setting, which raises “serious questions” about reasonableness, Daggett, 250 Wis. 2d 112, ¶15.
McDonald argues his blood draw falls on the non-medical profession/non-medical setting end of the spectrum, but given the facts in the record regarding the paramedic’s training and licensure, there’s no support for his assertion that the paramedic shouldn’t be considered a medical professional. Further, that categorization is not dispositive, and McDonald fails to show it was clearly erroneous for the circuit court to find the blood draw was performed safely by the paramedic in the jail setting. (¶¶13-18).
McDonald also claims the blood draw violated § 343.305(5)(b), which requires that blood draws for purposes of determining intoxication be performed “by a physician, registered nurse, medical technologist, physician assistant or person acting under the direction of a physician.” (Emphasis added.) Rejecting this claim, the court of appeals holds that:
- “under the direction of a physician” doesn’t require a “personal nexus” between the physician and the person acting under the physician’s direction, but only evidence the physician took professional responsibility over the training and conduct of the person (¶¶21-22);
- the term “person” in the phrase “person acting under the direction of a physician” includes a paramedic, regardless of whether the paramedic receives the same amount of training as the other positions enumerated in the statute (¶¶23-25); and
- the letter from the medical director of the ambulance service authorizing paramedics to perform legal blood draws covered the particular paramedic who drew McDonald’s blood and did not specifically prohibit blood draws in jail facilities (¶¶26-27).
Note that § 343.305(5)(b) was amended by 2013 Wis. Act 224 effective April 9, 2014, after the date of McDonald’s blood draw. It now includes two additional categories of persons statutorily authorized to perform blood draws: a “phlebotomist, or other medical professional who is authorized to draw blood,…” Neither the parties nor the court address whether this statutory change is pertinent to the issues presented here. (¶20 n.6).