State v. Constance Ilene Osborne, 2012AP2540-CR, District 4, 6/27/13; court of appeals decision (1-judge; ineligible for publication); case activity
The results of a blood draw done by an EMT at the jail after Osborne was arrested for OWI were admissible because the method and manner of the blood draw were reasonable and the EMT was acting under the direction of a physician, as required by § 343.305(5)(b).
State v. Daggett, 2002 WI App 32, ¶15, 250 Wis. 2d 112, 640 N.W.2d 546, recognized a “spectrum” of when a blood draw is reasonable, ranging from one done by a medical professional in a medical setting (“generally reasonable”) to one done by a non-medical professional in a non-medical setting (“‘serious questions’ of reasonableness”), but does not establish a bright-line rule. As in that case, the circumstances of the blood draw here show it was reasonable:
¶13 Like the defendant in Daggett, Osborne presented no evidence to suggest that the jail setting in which her blood was drawn would have created a “personal risk of infection and pain.” To the contrary, the EMT testified that the room was equipped specifically for blood draws, the room was clean, and he used sterile equipment to administer the blood draw. … With no evidence that the jail setting might have caused Osborne an unreasonable risk of infection or pain, it was reasonable to infer that the EMT determined that the blood draw could be safely performed in that location.
Nor did the EMT need to be operating under a written protocol from a physician to satisfy § 343.305(5)(b), applying State v. Penzkofer, 184 Wis. 2d 262, 516 N.W.2d 774 (Ct. App. 1994) (certified laboratory assistant acting under the direction of a physician where the physician identified written hospital protocol for administering blood draw):
¶19 …Penzkofer does not purport to interpret the statute as containing any such minimum standard. Here, 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. I see nothing in Penzkofer indicating that such testimony is insufficient under the statute.
Finally, even assuming an OWI blood draw by an EMT violates § 256.15(6n) and, by extension, Wis. Admin. Code DHS § 110.12, as Osborne argues, the court concludes that would not provide grounds for suppression. (¶¶20-21).