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State v. Patrick K. Kozel, 2015AP656-CR, petition for review granted 3/7/16

Review of an unpublished court of appeals decision; case activity (including briefs)

Issue (composed by On Point)

What is required to show that an evidentiary blood draw was conducted by a “person acting under the direction of a physician” for purposes of Wis. Stat. § 343.305(5)(b)?

Under § 343.305(5)(b), a person arrested for an OWI-related offense may be subject to a blood draw to determine the presence or quantity of alcohol or a controlled substance, but the blood draw must be done “by a physician, registered nurse, medical technologist, physician assistant, phlebotomist, or other medical professional who is authorized to draw blood, or person acting under the direction of a physician.” Kozel is one of a number of defendants who have challenged blood draws on the ground the person who did the draw wasn’t one of the enumerated professionals or a person “acting under the direction of a physician.” The decisions in the cases aren’t real consistent:

  • State v. Penzkofer, 184 Wis. 2d 262, 516 N.W.2d 774 (Ct. App. 1994), held that a certified laboratory assistant was acting under the direction of a physician, who testified there was a written hospital protocol that lab assistants used in administering blood draws.
  • State v. Osborne, 2012AP2540-CR (Wis. Ct. App. June 27, 2013) (unpublished), held that an EMT was acting under the direction of a physician where the EMT testified that a physician “signed off” on the performance of the EMT’s duties,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.
  • Sauk County v. McDonald, 2014AP1921 (Wis. Ct. App. May 7, 2015) (unpublished), held that the statute doesn’t require a “personal nexus” between the physician and the person acting under the physician’s direction, but only evidence the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; that paramedics could act under a physician’s direction; and that the paramedic in that case was “acting under the direction of a physician” based on a 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.

Then came Kozel’s case, which we described here. The court of appeals ignored McDonald entirely and held that the evidence didn’t satisfy Penzkofer and Osborne because even though the EMT who drew Kozel’s blood was authorized to act under a doctor’s license, there was no evidence the doctor guided or supervised, directly or via a protocol, the EMT’s performance of the blood draw.

Not only is there an apparent conceptual conflict between the court of appeals’ holding in this case and its holdings in Osborne and, especially, McDonald, but by weird coincidence all three cases came from the same county and same EMT service; in fact, according to the state’s brief (at 11), Kozel and Osborne involve the same EMT. We’ll now see if the supreme court can manage to articulate a clear standard for deciding what it takes for a person to be “acting under the direction of a physician.”

Note that there’s a potentially complicating factor in play here. All of the cases noted above arose under the statute before it was amended by 2013 Wis. Act 224, § 3 (eff. April 9, 2014). Act 224 added the phrase “phlebotomist, or other medical professional who is authorized to draw blood” to the list of authorized blood takers. Is an EMT a “medical professional who is authorized to draw blood”? Or do § 256.15(6n) and, by extension, Wis. Admin. Code DHS § 110.12, limit what acts EMTs (or certain EMTs) can perform, as Osborne argued, to no avail? Even if Act 224 didn’t apply when Kozel was arrested, the supreme court may have to address these questions, too.

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