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Blood Test Admissibility – Lab Tech Qualifications, Blood Draw

State v. Craig A. Erickson, 2010AP1763-CR, District 2, 1/12/11

court of appeals decision (1-judge, not for publication); for Erickson: Kirk B. Obear; case activity; Erickson BiC; State Resp.; Reply

Laboratory assistant, acting under direction of pathologist and following laboratory procedures, is qualified under § 343.305(5)(b) to draw blood. State v. Penzkofer, 184 Wis. 2d 262, 516 N.W.2d 774 (Ct. App. 1994), cited with approval.

The statute requires that the person, if not within several enumerated categories, perform the draw under supervision of a physician. The person in this instance testifed that she acted under direction of a pathologist, whom she couldn’t specifically say was a physician, leading Erickson to argue that her test therefore fails the statute. The court rejects the argument:

¶9 That a pathologist is indeed a physician is supported by the definition of “pathologist” as set forth by the American Society of Clinical Pathology: “A pathologist is a physician (MD or DO) who examines tissues and is responsible for the accuracy of laboratory tests,” http://www.ascp.org/pdf/ThePathologist.aspx (last visited Dec. 12, 2010), and also the National Institutes of Health: “Pathologist is a doctor specialized in medical diagnosis based on the macroscopic and microscopic study of structural changes of tissues and organs caused by the disease.” http://ghr.nlm.nih.gov/glossary=pathologist (last visited Dec. 27, 2010). Although the trial court did not resolve the issue prior to ruling on the motion, we reject Erickson’s contention that a pathologist is “not necessarily” a physician.

Nor does it matter that the assistant didn’t know that the pathologist was in fact a physician, ¶10

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