Under Wisconsin law, blood can be drawn from a person arrested for operating a vehicle while intoxicated “OWI”) to determine the presence or quantity of alcohol in the person’s body. However, only 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 may withdraw the blood. The Wisconsin Supreme Court, in Wisconsin v. Kozel, 2017 WI 3, ___ Wis. 2d ___, ___ N.W.2d ___, recently concluded that an EMT who drew an alleged drunk driver’s blood was a “person acting under the direction of a physician” under Wis. Stat. § 343.305(5)(b), and therefore fell within the category of individuals authorized to draw blood. As a result, the Court concluded that the suspect’s blood was drawn in a constitutionally reasonable manner.
In August 2013, a Sauk County Deputy Sheriff arrested Patrick Kozel for allegedly driving while intoxicated. At the Sauk County jail, Kozel consented to have his blood drawn. An EMT employed by Baraboo District Ambulance Service conducted the blood draw. Testing by the Medical Toxicology Section of the Wisconsin State Laboratory of Hygiene showed a blood ethanol level of 0.196 g/100 mL, in excess of the legal limit of 0.08 g/100 mL. See Wis. Stat. § 340.01(46m). In October 2013, the Sauk County District Attorney’s office charged Kozel with one count of operating a motor vehicle while intoxicated, second offense, and one count of operating with a prohibited alcohol concentration, second offense.
Subsequently, Kozel filed a motion to suppress the results of his blood test. Kozel argued that: (1) his blood was not taken by a person statutorily authorized to do so, namely a “person acting under the direction of a physician,” Wis. Stat. § 343.305(5)(b); and (2) his blood was taken in a constitutionally unreasonable manner, see U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”). Kozel, 2017 WI 3, ¶ 10. The State introduced the following evidence during the motion hearing:
As of August of 2013, the EMT was both licensed and certified by the State of Wisconsin to “perform legal blood draws.”
The EMT had been performing legal blood draws since June of 2009 under the supervision of a physician licensed in the State of Wisconsin who is the “medical director” of the Ambulance Service.
As the medical director, the doctor “signs off on not only [EMT] licenses, which allow [the EMTs] to practice medicine, but also any of the additional training and/or procedures that require approval.”
Id. ¶ 14.
Based on these facts, the circuit court denied Kozel’s motion to suppress the blood draw result. Kozel appealed. The court of appeals reversed, remanding the case to the circuit court to suppress the evidence obtained from Kozel’s blood. The court of appeals concluded that “the evidence was insufficient to establish that the EMT [who drew Kozel’s blood] was operating under the direction of a physician.” Id. ¶ 28. Given that conclusion, the court of appeals found it unnecessary to analyze whether the blood draw was constitutionally reasonable. The State appealed.
The supreme court reversed. First, the court concluded that the State’s evidence demonstrated that the EMT was acting under the direction of a physician because the doctor was in charge of the blood-drawing activities conducted by the EMT. See id. ¶ 39. The court rejected Kozel’s argument that the statute requires a specific type or degree of direction. Second, the court held that the blood draw in this case was constitutionally reasonable. Under the Fourth Amendment, the taking of a blood sample is a search, and therefore it must be reasonable. The court found that the evidence demonstrated the EMT was thoroughly trained and experienced in properly drawing blood, it was not unreasonable for the blood draw to occur in the non-medical setting of the jail, and Kozel failed to demonstrate that he had objected to the particular circumstances of the blood draw. See id. ¶¶ 44-47.
Justice Ann Walsh Bradley, joined by Justice Shirley Abrahamson, dissented. They concluded that there was insufficient evidence to support a finding that the EMT who drew Kozel’s blood was a “person acting under the direction of a physician” as required by Wis. Stat. § 343.305(5)(b), and that Kozel’s blood draw was not constitutionally reasonable based upon the facts of record. See id. ¶ 55 (Bradley, J., dissenting). The dissent also argued the fact that the EMT was authorized to act under a physician’s license was not evidence of acting under the physician’s direction for purposes of the statute. The dissent made a distinction between “directed” and “authorized,” and concluded that there was insufficient evidence to establish the EMT was working under the direction of a physician. See id. ¶ 72 (Bradley, J., dissenting). The dissent also concluded the record was silent as to the existence of written protocols detailing how to conduct a blood draw. This appears to be the critical distinction between Kozel’s case and existing precedent. Based on the record deficiencies, the dissent concluded that there was insufficient evidence to support the majority’s conclusion that the EMT was acting “under the direction of a physician” as required by the statute. See id. ¶ 87 (Bradley, J., dissenting).
The dissent also analyzed the constitutional reasonableness of the blood draw. The dissent concluded it was unreasonable because there was no evidence of any written protocols or procedures in the record. Specifically, the supervising physician did not train the EMT, never witnessed the EMT perform a blood draw, and never approved the EMT’s blood-draw techniques. See id. ¶ 98 (Bradley, J., dissenting). The record also failed to establish evidence of safety and accuracy as required by cases that concluded the blood draw was constitutionally reasonable.
This case presents interesting questions regarding the location and staffing of blood draws. Further, this case affirmed the blood-draw procedures employed by many Wisconsin jails. This case also provides a framework for how lower courts will likely analyze the constitutional implications of future blood draws, should they be challenged under the Fourth Amendment. Contact your Stafford Rosenbaum LLP criminal defense or municipal law attorney should you have any further questions.