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Evidence didn’t establish EMT was authorized to do OWI blood draw

State v. Patrick K. Kozel, 2015AP656-CR, District 4, 11/12/15 (one-judge decision; ineligible for publication), petition for review granted 3/7/16, reversed, 2017 WI 3; case activity (including briefs)

The results of a blood draw done by an EMT after Kozel was arrested for OWI were inadmissible because the State failed to prove that the blood draw was conducted by a “person acting under the direction of a physician,” as required by § 343.305(5)(b).

State v. Penzkofer, 184 Wis. 2d 262, 265-66, 516 N.W.2d 774 (Ct. App. 1994), held that § 343.305(5)(b) doesn’t require a specific order from a physician for each blood draw case, and found the certified laboratory assistant who performed the blood draw in that case was “acting under the direction of a physician” because the evidence established there was a written hospital protocol the lab assistant followed in administering blood draws and the protocol was reviewed, revised, and approved by a physician. State v. Osborne, No. 2012AP2540-CR, ¶¶17-19 (Wis. Ct. App. June 27, 2013) (unpublished), held Penzkofer doesn’t require a written protocol, either, and upheld a blood draw performed by an EMT based on testimony from the EMT that: he was operating under the supervision of a physician; the physician “signed off” on the performance of the EMT’s duties; the EMT was in at least monthly contact with the physician; and the EMT could be in contact with the physician at any time if the need arose.

The State claims the evidence in this case satisfies Penzkofer and Osborne, citing a 2009 letter from Dr. Mendoza, the medical director of the EMTs. (¶¶5, 12). The court doesn’t see it that way:

¶13     I agree with Kozel that in this case, the State failed to establish that the EMT performed the blood draw “under the direction of” Dr. Mendoza, or any other physician. The August 2009 letter establishes that all EMT Intermediate Technicians with the Baraboo District Ambulance Services have authority to perform legal blood draws under Dr. Mendoza’s license. However, evidence that the EMT was authorized to act under Dr. Mendoza’s license is not evidence that the EMT was acting under Dr. Mendoza’s direction, which is defined as “guidance or supervision of action, conduct or operation.” See Webster’s Third New International Dictionary 640 (1993). The EMT testified that he acts under Dr. Mendoza’s “supervision,” that he is able to contact Dr. Mendoza by phone if necessary, and that Dr. Mendoza “occasionally” goes to his place of work. However, like the August 2009 letter, this testimony is not evidence that Dr. Mendoza guided or supervised the EMT’s performance of the blood draw.

Because there is no evidence that the EMT operated under written procedures or protocols from or approved by Dr. Mendoza, that Dr. Mendoza approved the performance of the EMT’s blood draw duties on a regular or even irregular basis, or that the EMT had regular or even irregular contact with Dr. Mendoza, the EMT wasn’t “acting under the direction of a physician” and the blood draw was unlawful.

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