Evidence – Admissibility of Blood Test Results

State v. Michael Perzel, III, 2011AP1190-CR, District 4, 12/1/11

court of appeals decision (1-judge, not for publication); for Perzel: Waring R. Fincke; case activity

Blood test results are admissible without expert testimony to reflect a person’s bac at the time in question (in this OWI-related prosecution, at the time Perzel was driving), so long as the blood was drawn by a person enumerated in § 343.305(5)(d). One such person is a “registered nurse.” Perzel’s blood was indisputably drawn by a “nurse,” who wrote on the specimen form that she was an “RN” – Perzel argues that this notation, without more about her qualification as a “registered nurse,” is insufficient to establish the necessary foundation for admissibility. Observing that the “RN” notation, coupled with the person’s undisputed status as a nurse, provided sufficient basis for the trial judge to conclude she was a “registered nurse” (¶3), the court rejects the argument:

¶4        Perzel’s argument for reversal is not persuasive.  His argument, on its face, is inconsistent with Wis. Stat. § 901.04(1).  That statute reads, as pertinent here:  “Preliminary questions concerning … the admissibility of evidence shall be determined by the judge ….  In making the determination the judge is bound by the rules of evidence only with respect to privileges ….”  Id. (emphasis added).  So far as I can tell, Perzel is arguing that the “RN” notation is inadmissible hearsay and that it follows that the notation could not be considered by the court in its preliminary determination that the blood test results were admissible under the statute.  Section 901.04(1), however, instructs that the rules of evidence apply only “with respect to privileges.”  In view of this statute, it is not apparent why Perzel believes this preliminary question is governed by the rules of evidence.  And, Perzel does not otherwise explain why the hearsay rules of evidence apply to the judge’s decision at issue here.

Lots of loose play in the foundation joints, in other words. The nurse didn’t testify, of course (otherwise the issue would have been cleared up), and her document was admitted over hearsay objection. The jury was instructed that, on account of the document, “relevant evidence that the defendant had a prohibited alcohol concentration at the time of the alleged operating” had been “received” (Perzel’s Brief, pp. 3-5). Was a Melendez-Diaz sort of confrontation objection (forensic laboratory reports are testimonial for sixth amendment purposes) available? Hard to say, without knowing more; but as this result illustrates, hearsay rules don’t impede § 343.305(5)(d) admissibility. See, State v. Richard Dean Boyer, for recent summary of general principles re: forensic documents and confrontation.