2017 WI 3

Supreme Court of Wisconsin

CASE NO.: 2015AP656-CR

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Respondent-Petitioner,

 v.

Patrick K. Kozel,

 Defendant-Appellant.

REVIEW OF A DECISION OF THE COURT OF APPEALS

OPINION FILED: January 12, 2017

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: October 18, 2016

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Sauk

JUDGE: Guy D. Reynolds

JUSTICES:

CONCURRED:

DISSENTED: BRADLEY, A. W., J. dissents, joined by 

ABRAHAMSON, J. (Opinion filed). 

NOT PARTICIPATING: 

ATTORNEYS:

For the plaintiff-respondent-petitioner the cause was 

argued by Michael C. Sanders, assistant attorney general, with 

whom on the brief was Brad D. Schimel, attorney general.

For the defendant-appellant, there was a brief by Tracey A. 

Wood, Sarah Schmeiser and Tracey Wood and Associates, Madison, 

and oral argument by Sarah Schmeiser.
2017 WI 3

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2015AP656-CR

(L.C. No. 2013CT499)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Respondent-Petitioner,

 v.

Patrick K. Kozel,

 Defendant-Appellant.

FILED

JAN 12, 2017

Diane M. Fremgen

Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Reversed. 

¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an 

unpublished decision of the court of appeals, State v. Kozel, 

No. 2015AP656-CR, unpublished slip op. (Wis. Ct. App. Nov. 12, 

2015), which reversed the Sauk County circuit court's1 judgment 

of conviction of defendant Patrick K. Kozel ("Kozel") and 

remanded the case to the circuit court to suppress evidence of 

drunk driving obtained from a sample of Kozel's blood. Kozel, 

unpublished slip op., ¶1.

 

1 The Honorable Guy D. Reynolds presided.
No. 2015AP656-CR 

2

¶2 After being arrested for drunk driving, Kozel was 

taken to the Sauk County jail where he agreed to have his blood 

drawn. In a clean room at the jail, an emergency medical 

technician ("EMT") trained in drawing blood and acting at the 

request of law enforcement used a new blood draw kit containing 

a sterile needle to take samples of Kozel's blood. The EMT was 

authorized in writing by a physician to draw blood when asked to 

do so by law enforcement. Kozel argues that the results of 

testing of his blood must be suppressed because the EMT who drew 

Kozel's blood was not a "person acting under the direction of a 

physician" as required by statute, Wis. Stat. § 343.305(5)(b) 

(2011-12),2 and because the blood draw was taken in a 

constitutionally unreasonable manner under the Fourth Amendment 

to the United States Constitution and Article I, Section 11 of 

the Wisconsin Constitution.

¶3 We conclude that the EMT who drew Kozel's blood was a 

"person acting under the direction of a physician," Wis. Stat. 

§ 343.305(5)(b), and that Kozel's blood was drawn in a 

constitutionally reasonable manner. Accordingly, we reverse the 

decision of the court of appeals.

I. FACTUAL BACKGROUND

¶4 On August 20, 2013, at about 2:10 a.m., while "sitting 

stationary" at the Greenfield Town Hall in Sauk County, 

Wisconsin, Deputy Brian Slough ("Deputy Schlough") of the Sauk 

 

2 All subsequent references to the Wisconsin Statutes are to 

the 2011-12 version unless otherwise indicated.
No. 2015AP656-CR 

3

County sheriff's department allegedly observed a vehicle make a 

wide right turn onto Bluff Road. Deputy Schlough began 

following the vehicle. Bluff Road is a relatively "narrow," 

"hilly" roadway "with several curves," and there are no lane 

markers on the road. According to Deputy Schlough, the ditches 

on either side of the road are "very steep" at certain locations 

and "a creek . . . runs along the road" at various points, so 

the road is somewhat dangerous. According to Deputy Schlough's 

testimony, the vehicle Deputy Schlough was following drove 

across the road and almost into the ditch on the east side of 

the road, and more than once the vehicle drove into the ditch on 

the west side of the road. After following the vehicle for 

about half of a mile, Deputy Schlough stopped the vehicle and 

spoke with its driver, Kozel.

¶5 Kozel "had difficulty retrieving" his driver's license 

from his wallet, and Deputy Schlough eventually obtained the 

license for him. Deputy Schlough noticed that Kozel had 

"bloodshot, glassy" eyes and the deputy smelled "a strong odor 

of intoxicants coming from the vehicle." Kozel's speech was 

slurred. Upon questioning, Kozel informed Deputy Schlough that 

he was traveling from Black River Falls and that he had consumed 

two beers. Deputy Schlough returned to his vehicle whereupon he 

learned that Kozel had a prior conviction for operating while 

intoxicated. Deputy Schlough decided to have Kozel perform 

field sobriety tests and went back to Kozel's vehicle. 

¶6 Deputy Schlough asked Kozel to exit his vehicle and 

once again asked him "how much he had to drink and where he was 
No. 2015AP656-CR 

4

coming from." This time, Kozel replied that "he was coming from 

a friend's house in Baraboo and that he had three 12-ounce cans 

of Budweiser." Deputy Schlough asked Kozel if he had any 

physical or medical problems, and Kozel stated that he did not. 

Kozel did not perform well on the field sobriety tests. Deputy 

Schlough then administered a preliminary breath test; Kozel blew 

a 0.17, that is, the preliminary breath test results were well 

in excess of the 0.08 legal limit. See Wis. Stat. § 340.01(46m) 

(2013-14). Deputy Schlough placed Kozel in handcuffs and under 

arrest. Kozel was then taken to the Sauk County jail.

¶7 At the jail, Kozel agreed to have his blood drawn. At 

3:20 a.m., Matthew Goethel ("Goethel"), an EMT employed by 

Baraboo District Ambulance Service ("BDAS"), conducted the blood 

draw, obtaining two specimens. Testing by the Medical 

Toxicology Section of the Wisconsin State Laboratory of Hygiene 

showed a blood ethanol level of 0.196, again, well in excess of 

the legal limit of 0.08. See Wis. Stat. § 340.01(46m) (2013-

14).

II. PROCEDURAL BACKGROUND

¶8 On October 7, 2013, a criminal complaint was filed 

against Kozel in Sauk County circuit court charging him with one 

count of operating a motor vehicle while intoxicated, contrary 

to Wis. Stat. § 346.63(1)(a) (2013-14), second offense, see Wis. 

Stat. § 346.65(2)(am)2. (2013-14), and one count of operating 

with a prohibited alcohol concentration, contrary to Wis. Stat. 

§ 346.63(1)(b) (2013-14), second offense, see Wis. Stat. 

§ 346.65(2)(am)2. (2013-14). On November 5, 2013, Kozel filed 
No. 2015AP656-CR 

5

motions to suppress evidence obtained as a consequence of Deputy 

Schlough's stop and detention of Kozel and to suppress the 

results of the analysis of Kozel's blood. 

¶9 On June 23, 2014, a hearing was held on the 

suppression motion pertaining to the traffic stop initiated by 

Deputy Schlough. The circuit court orally denied the motion. 

On June 27, 2014, the court entered an order to the same effect. 

¶10 On September 26, 2014, a hearing was held on the 

suppression motion pertaining to the draw of Kozel's blood. 

Kozel made two primary arguments relevant to this appeal: (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 . . . .").

¶11 In order to meet these claims, the State called 

Goethel, the EMT who had drawn Kozel's blood, to testify at the 

hearing. Questioning of Goethel provided the following relevant 

pieces of information.

¶12 Goethel testified that he had been employed as an EMT 

intermediate technician by BDAS since September of 2005. This 

position is "a level of licensure set forth by the Wisconsin 

[Department of Health Services] that allows [Goethel] to, upon 

completion of appropriate and successful training, . . . provide 

certain skills and perform various procedures." Goethel was 
No. 2015AP656-CR 

6

"certified in [cardiopulmonary resuscitation] through the 

American Heart Association" and had taken "three certification 

classes to allow [him] to [reach his] current level of 

licensure," as well as "additional trainings as they are 

required and/or available." He was "certified by the National 

Registry of Emergency Medical Technicians as an advanced EMT."

¶13 When asked "[w]hat kind of things . . . [he] do[es]" 

in his work for BDAS, Goethel replied that he "[r]espond[s] to 

911 calls, interfacility transfers, perform[s] legal blood 

draws, PR events, general education and training." He takes 

care of people "who are sick and in an emergency setting." 

Goethel "can perform splinting for possible fractures, spinal 

immobilization, medical and trauma assessments, establishment of 

intravenous lines, the administration of several different 

medications by various routes and . . . also mak[e] transport 

decisions." 

¶14 As of August of 2013, Goethel was both licensed and 

certified by the State of Wisconsin to "perform legal blood 

draws" and had drawn blood between 100 and 150 times, not 

including practice draws he had performed. Goethel had been 

performing legal blood draws since June of 2009 under the 

supervision of Dr. Manuel Mendoza ("Dr. Mendoza"), a physician 

licensed in the State of Wisconsin who is the "medical director" 

of BDAS. Dr. Mendoza had been serving in that position since 

before Goethel joined BDAS. Goethel explained that as medical 

director, Dr. Mendoza "signs off on not only our licenses, which 
No. 2015AP656-CR 

7

allow us to practice medicine, but also any of the additional 

training and/or procedures that require approval." 

¶15 The State introduced into evidence, in the words of 

Goethel, "[A] letter from Dr. Mendoza to our staff, our 

administration stating that the authorized EMT paramedics and 

intermediate technicians may perform legal blood draws."3

According to Goethel, the letter was "current" and "was issued 

to [Goethel] via [his] training director [at BDAS] at the time."

The letter states as follows (typographical errors have not been 

corrected):

August 21, 2009

To Whom It May Concern:

As Medical Director for Baraboo District Ambulance 

Service, I have authorized a standing order for the 

EMT-Paramedics and approved EMT-Intermediate 

Technicians authority to draw legal blood draws at the 

request of the law enforcement officers.

The Baraboo District Ambulance Service EMT-Paramedics 

and EMT-Intermediate Technicians are acting under the 

direction of my physician license.

They have all completed extensive training regarding 

the procedures and legalities of obtaining blood 

draws. If you have any questions regarding this 

manner, please do not hesitate to contact me.

Best regards,

[signature]

Manuel Mendoza, M.D.

Medical Control for Baraboo District Ambulance Service

 

3 Kozel's attorney objected to introduction of the letter. 

The circuit court overruled the objection.
No. 2015AP656-CR 

8

St. Clare Hospital

[address]

Baraboo, WI, 53913

[phone number]

¶16 Goethel was "personally familiar" with Dr. Mendoza, 

and Dr. Mendoza occasionally appeared at Goethel's place of 

work. Goethel agreed that Dr. Mendoza "give[s] trainings and 

just in general ways supervise[s]" him. Goethel was certified 

but not trained by Dr. Mendoza. Dr. Mendoza did not "test 

[Goethel] or have [him] do [any] procedures for him"; "he simply 

reviewed [Goethel's] certification." Dr. Mendoza had never 

observed Goethel performing a blood draw at the jail. Although 

Dr. Mendoza had never "personally told [Goethel] that [it] is 

okay for [Goethel] to draw blood at the jail," Goethel testified 

that Dr. Mendoza "is aware" that blood draws occur at the jail. 

"All of the legal blood draws [Goethel] [had] performed ha[d] 

been at the Sauk County Jail."

¶17 Goethel agreed with the defense that it is "possible 

for a person to have medical issues that would affect a blood 

draw," and that there is "the potential" for "some medical 

issues [to] have a serious effect." But during a blood draw, 

Goethel could contact Dr. Mendoza "[i]mmediately via cell 

phone," and if Dr. Mendoza "were not available" Goethel could 

contact "the on-duty physician at the St. Clare Hospital 

emergency department." According to Goethel, there is always an 

emergency doctor on call there. On cross-examination, Goethel 

clarified that his "first point of contact would be the 

emergency room doctor." In the event of an emergency, 
No. 2015AP656-CR 

9

Dr. Mendoza could be contacted by telephone for assistance, and 

emergency room doctors were also available.

¶18 Goethel is regularly in contact with the emergency 

department, "providing basic information on why [BDAS] had 

contact with the patient and what interventions and procedures 

[BDAS] performed," asking "any questions," and speaking with 

them if BDAS "needed additional approval to do certain 

interventions or provide certain medications." "[I]f somebody 

had to be transported to the hospital," it could "be done 

quickly." If Goethel ever were "in over [his] head," he 

"could . . . call someone." Finally, if someone "experienc[ed] 

a heart problem," Goethel himself could "be of assistance to 

them" because he "ha[s] training in that." On cross-examination 

Goethel granted that "[p]ossibly" a person experiencing such an 

issue would "receive faster treatment if [the parties] were at 

the emergency room already." Likewise, Goethel conceded that 

"in some circumstances . . . there are specific interventions 

that can occur at the emergency room that cannot occur at the 

jail."

¶19 Goethel testified that he performed blood draws at the 

Sauk County jail in Baraboo in "a small room" he "refer[s] to as 

the prebooking area" which is "approximately eight feet by 12 

feet." Goethel uses the room "at least once or twice a month." 

When asked about the room's contents, Goethel explained:

On one side is a chair that's equipped with 

armrests, very typical of what you would see at a 

medical clinic or a hospital. There is a Breathalyzer 

machine, which I have no use for.
No. 2015AP656-CR 

10

There are various shelves and stacks of 

paperwork. Additionally this is the location where 

the unused and new legal blood draw kits are stored.

The room "appears clean" and "well-lit." Goethel knew that the 

room was cleaned "regularly" because there is "a sign or chart 

on the wall indicating when jail staff have come through to 

perform janitorial duties." Goethel had never "noticed [the] 

room to be dirty" before drawing an individual's blood in it, 

and the room has never "looked any dirtier than an emergency 

room" to Goethel. The floor "look[s] comparable to what 

[Goethel] would see in an emergency room." The chair in the 

room is "designed for drawing blood," and its armrests "are 

specific for drawing blood." The chair is either "the type of 

chair [one] might find in the emergency room" or "very close by 

[sic]"; it "look[s] similar to the chair in the emergency room." 

Goethel has never "noticed [the] chair to be dirty." 

¶20 If Goethel ever "noticed anything that was dirty about 

the room," he could "contact the jail" and they would "fix it" 

"immediately." Goethel testified that although the room was not 

sterile, neither are emergency rooms. He had never heard of 

anyone from whom he had drawn blood in the jail acquiring an 

infection due to the blood draw. When asked whether Dr. Mendoza 

had "ever inspected the blood draw location at the jail," 

Goethel stated, "Not to my knowledge."

¶21 The blood draw kits in the room are also clean. The 

kits contain a "butterfly needle" that is sterile "[w]hile it is 

still in the package." The needle "comes packaged" and "no one 

else has had [the] needle in them." When the package is opened, 
No. 2015AP656-CR 

11

that "let[s] air in and that means it's no longer sterile," but 

"that would be true in the emergency room as well." 

¶22 Goethel agreed with the State that he had "been doing 

continual training on how to draw blood" and explained that he 

had been trained to draw blood by "several . . . individuals," 

including

[D.C.] from then known as the Madison Area 

Technical College, former captain [J.H.] who was our 

former training director. Additionally [D.P.], who is 

a former critical care paramedic on our staff, and 

then my appropriate training via the Madison Area 

Technical College, to which I'm licensed as an 

intermediate technician, and then also my training as 

an advanced EMT.

Goethel testified that all of the classes are certified. 

¶23 Goethel set forth the procedures for drawing blood 

which he had been trained to follow in some detail:

Initially I start -- within the blood draw kit 

itself there are a couple of glass, we call them 

Vacutainer tubes, it's a vacuum-charged glass tube, 

those are held off to the side until we're completely 

ready to draw.

I will have affixed a tourniquet usually above 

what's known as the antecubital space where you think 

of the inside of your elbow. That's tightened down. 

The space, the antecubital space, will be cleansed 

with an alcohol-free swab in what's known as an 

aseptic technique.

Once I have found a suitable location to make the 

venipuncture with a 21-gauge butterfly needle, it's 

placed into the vein. I receive confirmation that it 

is in the vein by a small amount of blood in what's 

known as a flash chamber.

Once I have that confirmation, I apply the vacuum 

tube to the back end of the needle and tubing 

assembly, allow them to fill as much as they can with 
No. 2015AP656-CR 

12

the blood. I then invert them upright and upside down 

several times to mix the powder that's within the 

tube.

Once that has been completed, I generally hold 

onto the tubes, remove the tourniquet, and then place 

a cotton ball or piece of gauze over the site of the 

venipuncture, remove the needle and tape the dressing 

down.

Following that the tubes are generally sealed 

with a two-sticker seal and I then turn over custody 

of them to the arresting officer.

This is "the same type of procedure[] they use to draw blood in 

the emergency room." Indeed, Goethel agreed that "the emergency 

room technicians [are] trained at some of the same places 

[Goethel] is," at least "to [his] knowledge." The defense asked 

Goethel, "Other than the letter that has been introduced, are 

there other instructions or protocols from Dr. Mendoza that you 

follow?" Goethel's response was, "Regarding the blood draw, I 

would have to check. I believe there are." 

¶24 Goethel was asked whether he "ever had anyone have any 

difficulties while [he] [was] drawing their blood in the blood 

draw room at the jail." Goethel replied "[y]es" and explained 

that "[A]fter my initial attempt on one occasion, I was 

preparing for a second venipuncture, [and] the subject, a male 

subject, lost consciousness and myself and one or two jail 

deputies assisted him to the floor. I immediately requested the 

jail staff page for an ambulance." The individual recovered 

and, as far as Goethel was aware, did so without any 

difficulties.
No. 2015AP656-CR 

13

¶25 The State questioned Goethel about the specific blood 

draw that had occurred in this case. Goethel talked to Deputy 

Schlough prior to drawing Kozel's blood. Deputy Schlough 

explained that Kozel "had been read the Informing the Accused 

and that [Goethel] could proceed with the blood draw." Goethel 

typically received this confirmation before performing a blood 

draw. Kozel was cooperative, and Goethel's report did not 

"indicate anything out of the ordinary." Before drawing the 

blood, Goethel did not "speak with [Kozel] about any health 

issues that [Kozel] ha[d]" and did not ask Kozel "if he was on 

any medication." Goethel "didn't verify [Kozel's] medical

status at all." Goethel drew the blood according to the 

procedures explained above. Goethel did not "have any problems 

with [Kozel's] blood draw." When asked if Kozel had any 

problems, Goethel replied, "Not that I recall." Goethel had not 

heard that the defendant had had "any issues concerning 

infection or anything." 

¶26 After hearing all of this testimony, the circuit court 

orally denied Kozel's motion pertaining to the blood draw that 

occurred. 

¶27 On January 9, 2015, Kozel pleaded no contest to one 

count of operating a motor vehicle while intoxicated, contrary 

to Wis. Stat. § 346.63(1)(a) (2013-14), second offense, see Wis. 

Stat. § 346.65(2)(am)2. (2013-14). The court sentenced Kozel to 

17 days in the Sauk County jail with Huber privileges, assessed 

a fine and costs, ordered Kozel's driving privilege revoked for 
No. 2015AP656-CR 

14

15 months, and specified requirements for reinstatement of that 

privilege.

¶28 On March 30, 2015, Kozel filed a notice of appeal. On 

November 12, 2015, the court of appeals reversed the circuit 

court's judgment of conviction and remanded the case to the 

circuit court to suppress the evidence obtained from Kozel's 

blood. Kozel, unpublished slip op., ¶1. 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., ¶14. Given that conclusion, 

the court of appeals found it unnecessary to analyze whether the 

blood draw was constitutionally reasonable and thus did not do 

so. Id. (citing Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W.

663 (1938)).

¶29 On December 11, 2015, the State filed a petition for 

review in this court. On March 7, 2016, this court granted the 

petition.

III. STANDARD OF REVIEW

¶30 In cases involving review of decisions on motions to 

suppress evidence, this court "review[s] the circuit court's 

findings of historical fact under a deferential standard, 

upholding them unless they are clearly erroneous," then 

"independently appl[ies] constitutional principles to those 

facts." State v. Tullberg, 2014 WI 134, ¶27, 359 Wis. 2d 421, 

857 N.W.2d 120 (quoting State v. Robinson, 2010 WI 80, ¶22, 327 

Wis. 2d 302, 786 N.W.2d 463).
No. 2015AP656-CR 

15

¶31 This case also necessitates "interpretation and 

application" of a statute, matters "present[ing] questions of 

law that we review de novo while benefiting from the analyses of 

the court of appeals and circuit court." Journal Times v. 

Racine Bd. of Police & Fire Comm'rs, 2015 WI 56, ¶42, 362 

Wis. 2d 577, 866 N.W.2d 563 (quoting 118th St. Kenosha, LLC v. 

DOT, 2014 WI 125, ¶19, 359 Wis. 2d 30, 856 N.W.2d 486). 

IV. ANALYSIS

¶32 We need address only two issues in this case: (1) 

whether Goethel was a "person acting under the direction of a 

physician" when he drew Kozel's blood, Wis. Stat. 

§ 343.305(5)(b); and (2) whether Kozel's blood was drawn in a 

constitutionally reasonable manner. We now analyze these 

questions.4

A. Whether Goethel Was a Person Acting Under the 

Direction of a Physician When He Drew Kozel's Blood

¶33 Wisconsin Stat. § 343.305, "known as the implied 

consent law," Village of Elm Grove v. Brefka, 2013 WI 54, ¶19, 

348 Wis. 2d 282, 832 N.W.2d 121, amended by 2013 WI 86, 350 

 

4 The State argues that suppression is not required even if 

Goethel did not comply with Wis. Stat. § 343.305(5)(b), as long 

as the blood draw that occurred was constitutionally reasonable. 

We need not resolve that issue in light of our conclusions 

today. See Walworth State Bank v. Abbey Springs Condo. Ass'n, 

Inc., 2016 WI 30, ¶13 n.7, 368 Wis. 2d 72, 878 N.W.2d 170 

("Typically, an appellate court should decide cases on the 

narrowest possible grounds." (quoting Maryland Arms Ltd. P'ship 

v. Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300, 786 N.W.2d 15)). 

This opinion should not be read to address the issue.
No. 2015AP656-CR 

16

Wis. 2d 724, 838 N.W.2d 87, governs the testing of a motorist's

"breath, blood or urine, for the purpose of determining the 

presence or quantity in his or her blood or breath, of alcohol, 

controlled substances, controlled substance analogs or other 

drugs, or any combination of alcohol, controlled substances, 

controlled substance analogs and other drugs." Wis. Stat. 

§ 343.305(2). We examine a "single, narrow aspect of the 

procedures set forth in the implied consent law," Brefka, 348 

Wis. 2d 282, ¶19, namely the set of individuals authorized to 

draw blood under the statute.

¶34 Section 343.305(5)(b) provides in relevant part:

Blood may be withdrawn . . . to determine the 

presence or quantity of alcohol, a controlled 

substance, a controlled substance analog or any other 

drug, or any combination of alcohol, controlled 

substance, controlled substance analog and any other 

drug in the blood only by a physician, registered 

nurse, medical technologist, physician assistant or 

person acting under the direction of a physician.

Wis. Stat. § 343.305(5)(b) (emphasis added).5 The State argues 

that this requirement is fulfilled because Goethel drew blood 

 

5 The legislature recently amended the language at issue in 

this case. See 2013 Wis. Act. 224, § 3. The statute now reads, 

in relevant part: 

Blood may be withdrawn . . . to determine the 

presence or quantity of alcohol, a controlled 

substance, a controlled substance analog, or any other 

drug, or any combination of alcohol, controlled 

substance, controlled substance analog, and any other 

drug in the blood only by a physician, registered 

nurse, medical technologist, physician assistant, 

phlebotomist, or other medical professional who is 

(continued)
No. 2015AP656-CR 

17

under the direction of Dr. Mendoza. Kozel contends that the 

evidence introduced by the State was insufficient to establish 

compliance with the statute. There appears to be no dispute, 

nor any reason to dispute, that Goethel is a "person" and that 

Dr. Mendoza is a "physician" within the meaning of 

§ 343.305(5)(b). Thus, the only question is whether Goethel was 

"acting under the direction" of Dr. Mendoza when he drew Kozel's 

blood. We conclude that the evidence is sufficient to show that 

Goethel was a "person acting under the direction of a 

physician." Id.

¶35 "[W]e have repeatedly held that statutory 

interpretation 'begins with the language of the statute. If the 

meaning of the statute is plain, we ordinarily stop the 

inquiry.' Statutory language is given its common, ordinary, and 

accepted meaning, except that technical or specially-defined 

words or phrases are given their technical or special 

definitional meaning." State ex rel. Kalal v. Circuit Court for 

Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 

(citations omitted) (quoting Seider v. O'Connell, 2000 WI 76,

¶43, 236 Wis. 2d 211, 612 N.W.2d 659). The court of appeals 

below relied on a definition of "direction" taken from Webster's 

Third New International Dictionary: "guidance or supervision of 

action, conduct, or operation." Kozel, unpublished slip op., 

 

authorized to draw blood, or person acting under the

direction of a physician.

Wis. Stat. § 343.305(5)(b) (2013-14) (emphasis added).
No. 2015AP656-CR 

18

¶13 (quoting Direction, Webster's Third New International 

Dictionary 640 (1993)). This definition is adequate for our 

purposes.

¶36 The evidence below showed that Dr. Mendoza, the 

medical "director" of BDAS of at least seven years, specifically 

"authorized a standing order" for BDAS EMT intermediate 

technicians such as Kozel to perform blood draws when requested 

to do so by law enforcement. A "standing order" is "an 

instruction or prescribed procedure in force permanently or 

until specifically changed or canceled." Standing order,

Webster's Third New International Dictionary 2224 (1993). 

Dr. Mendoza's authorization was formalized in a writing which 

also contained his confirmation that the EMTs had "completed 

extensive training regarding the procedures and legalities of 

obtaining blood draws." Finally, Goethel was able to contact 

Dr. Mendoza if necessary when performing a blood draw. 

¶37 This evidence demonstrates that BDAS EMTs are acting 

under Dr. Mendoza's direction. The concept of "direction" 

reasonably contemplates varying degrees of proximity between a 

director and the person whose actions he or she guides rather 

than a single, set relationship applicable in all cases. Had 

the legislature envisioned only one manner of "direction," it 

would have spelled out the specific procedures that a physician 

and the person he or she directs must follow to meet that 

requirement. See State v. Penzkofer, 184 Wis. 2d 262, 266, 516 

N.W.2d 774 (Ct. App. 1994) ("[T]he legislature could have chosen 

to require the test to be taken by or taken in the presence of a 
No. 2015AP656-CR 

19

physician, but it did not."); cf., e.g., Longview Fibre Co. v. 

Rasmussen, 980 F.2d 1307, 1314 (9th Cir. 1992) (dismissing 

petition for review) ("Had Congress intended a more general 

meaning, it would have used more general words."). 

¶38 If Dr. Mendoza had trained the BDAS EMTs himself, 

ordered each blood draw on a case-by-case basis, and personally 

observed each individual blood draw, there would likely be no 

dispute that the EMTs were acting under Dr. Mendoza's direction. 

But blood draws are "routine" affairs, Schmerber v. California, 

384 U.S. 757, 771 n.13 (1966) (quoting Breithaupt v. Abram, 352 

U.S. 432, 436 (1957)), and nothing in Wis. Stat. § 343.305(5)(b) 

prevents a physician from supervising such standard procedures 

in a more streamlined fashion. Thus, instead of training the 

EMTs on his own, Dr. Mendoza satisfied himself that the EMTs had 

"completed extensive training regarding the procedures and 

legalities of obtaining blood draws" and made that fact known to 

others in his writing. Instead of ordering each blood draw on a 

case-by-case basis, Dr. Mendoza issued a standing order 

authorizing EMTs to draw blood when requested to do so by law 

enforcement. And instead of personally observing each 

individual blood draw, Dr. Mendoza allowed EMTs to perform blood 

draws on their own, but made himself accessible by telephone 

should any problems arise. 

¶39 The testimony below leaves no doubt that it is 

Dr. Mendoza who is in charge of blood-drawing activities 

conducted by BDAS EMTs. To require more evidence than what the 

State provided below to establish that Goethel was acting under 
No. 2015AP656-CR 

20

the direction of Dr. Mendoza would be to require a specific type 

or degree of direction where the statute at issue does not so 

specify. "We will not read into the statute a limitation the 

plain language does not evidence." Cty. of Dane v. LIRC, 2009 

WI 9, ¶33, 315 Wis. 2d 293, 759 N.W.2d 571. The court of 

appeals erred in concluding otherwise. 

B. Whether Kozel's Blood Was Drawn in a Constitutionally 

Reasonable Manner

¶40 The Fourth Amendment to the United States 

Constitution, applicable to the states though the Fourteenth 

Amendment, e.g., State v. Kramer, 2009 WI 14, ¶18, 315 

Wis. 2d 414, 759 N.W.2d 598 (citing Mapp v. Ohio, 367 U.S. 643 

(1961)), provides:

The right of the people to be secure in their 

persons, houses, papers, and effects, against 

unreasonable searches and seizures, shall not be 

violated, and no Warrants shall issue, but upon 

probable cause, supported by Oath or affirmation, and 

particularly describing the place to be searched, and 

the persons or things to be seized.

U.S. Const. amend. IV.6 "Virtually any 'intrusio[n] into the 

human body' will work an invasion of '"cherished personal 

security" that is subject to constitutional scrutiny.'"

Maryland v. King, 569 U.S. ___, 133 S. Ct. 1958, 1969 (2013) 

 

6 "We have historically interpreted the Wisconsin 

Constitution's [Article I, § 11] protections in this area

identically to the protections under the Fourth Amendment as 

defined by the United States Supreme Court." State v. Dearborn, 

2010 WI 84, ¶14, 327 Wis. 2d 252, 786 N.W.2d 97 (citing State v. 

Kramer, 2009 WI 14, ¶18, 315 Wis. 2d 414, 759 N.W.2d 598). We 

will reference only the Fourth Amendment in this opinion.
No. 2015AP656-CR 

21

(alteration in original) (citation omitted) (quoting Schmerber, 

384 U.S. at 770; then quoting Cupp v. Murphy, 412 U.S. 291, 295 

(1973)). Consistent with this principle, "the taking of a blood 

sample . . . is a search" under the Fourth Amendment.

Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 2173 

(2016). 

¶41 Nevertheless, "[t]he Fourth Amendment's proper

function is to constrain, not against all intrusions as such, 

but against intrusions which are not justified in the 

circumstances, or which are made in an improper manner." King, 

133 S. Ct. at 1969 (quoting Schmerber, 384 U.S. at 768).

¶42 In Schmerber the Supreme Court assessed the 

constitutional reasonableness of a blood draw of a drunk driver, 

characterizing the applicable issues as "whether the police were 

justified in requiring petitioner to submit to the blood test, 

and whether the means and procedures employed in taking his 

blood respected relevant Fourth Amendment standards of 

reasonableness." Schmerber, 384 U.S. at 758-59, 768. After 

concluding that a warrant was not required in that case, id. at

768-71, the Supreme Court briefly examined the State's "means of 

testing" the defendant's blood-alcohol content and "manner" in 

which "the test was performed." Id. at 771-72. With regard to 

the State's "means of testing," the Supreme Court explained: 

Extraction of blood samples for testing is a highly 

effective means of determining the degree to which a 

person is under the influence of alcohol. Such tests 

are a commonplace in these days of periodic physical 

examination and experience with them teaches that the 

quantity of blood extracted is minimal, and that for 
No. 2015AP656-CR 

22

most people the procedure involves virtually no risk, 

trauma, or pain. 

Id. at 771 (citation omitted). In a footnote, the court 

remarked:

The blood test procedure has become routine in 

our everyday life. It is a ritual for those going 

into the military service as well as those applying 

for marriage licenses. Many colleges require such 

tests before permitting entrance and literally 

millions of us have voluntarily gone through the same, 

though a longer, routine in becoming blood donors.

Id. at 771 n.13 (quoting Breithaupt, 352 U.S. at 436). With 

regard to the "manner" in which "the test was performed," the 

Court concluded: 

[T]he record shows that the test was performed in a 

reasonable manner. Petitioner's blood was taken by a 

physician in a hospital environment according to 

accepted medical practices. We are thus not presented 

with the serious questions which would arise if a 

search involving use of a medical technique, even of 

the most rudimentary sort, were made by other than 

medical personnel or in other than a medical 

environment——for example, if it were administered by 

police in the privacy of the stationhouse. To 

tolerate searches under these conditions might be to 

invite an unjustified element of personal risk of 

infection and pain.

Id. at 771-72. 

¶43 Kozel argues that certain material differences between 

the blood draw that occurred in this case and the blood draw 

that occurred in Schmerber require suppression of evidence. 

Specifically, Kozel simply maintains that the State failed to 

establish that the manner in which the State drew his blood——by 

an EMT in a jail rather than "by a physician in a hospital 
No. 2015AP656-CR 

23

environment according to accepted medical practices," id. at 

771——was constitutionally reasonable. We reject this argument.7

¶44 First, it was not unreasonable for an EMT, as opposed 

to a physician, to draw Kozel's blood. We need not resolve the 

parties' dispute over whether Goethel technically qualifies as a 

"medical professional" or a "paraprofessional." The important 

point for constitutional purposes is that the evidence 

demonstrated that Goethel was thoroughly trained and experienced 

in properly drawing blood. Additionally, if any medical issues 

arose for which Goethel was not equipped, Goethel had access to 

physicians who could assist. The Schmerber Court explained with 

regard to blood testing that "for most people the procedure 

involves virtually no risk, trauma, or pain." Id. at 771. Its 

concern——though it did not decide the issue——was that procedures 

"made by other than medical personnel . . . might . . . invite 

an unjustified element of personal risk of infection and pain."

Id. at 772. We fail to see how performance of such an everyday 

 

7 Kozel does not argue that other differences between the 

circumstances in Schmerber and those in this case require 

suppression, and we do not comment on them. See generally

Winston v. Lee, 470 U.S. 753, 760-63 (2013) (discussing the list 

of items considered by the Supreme Court in Schmerber v. 

California, 384 U.S. 757 (1966), as relevant to the 

constitutionality of the blood test that occurred in that case, 

including "the ordinary requirements of the Fourth Amendment,"

"the extent to which the procedure may threaten the safety or 

health of the individual," "the extent of intrusion upon the 

individual's dignitary interests in personal privacy and bodily 

integrity," and "the community's interest in fairly and 

accurately determining guilt or innocence").
No. 2015AP656-CR 

24

procedure by a licensed, certified EMT unjustifiably increases 

such a risk. The evidence presented showed the opposite. Nor 

do we conclude that the State's failure to introduce specific 

protocols for drawing blood mandates a different result, where 

Goethel testified as to his training in drawing blood, the 

specific procedures he was taught to follow, and the fact that 

he followed those procedures in this case. The circuit court's 

finding that Kozel's blood was drawn "in accordance with 

medically accepted procedures" is not clearly erroneous.

¶45 Second, it was not unreasonable for the blood draw to 

occur in the non-medical setting of the jail. As the trial 

court explained, the evidence indicated that the room in which 

Kozel's blood was drawn "was clean and as clean as a hospital 

emergency room." Further, Goethel used a new blood draw kit 

containing a sterile needle. While some non-medical settings——

indeed, some jails——might "invite an unjustified element of 

personal risk of infection and pain," Schmerber, 384 U.S. at 

772, the evidence presented by the State dispelled any such 

fears as to the particular room in the particular jail at issue. 

See State v. Daggett, 2002 WI App 32, ¶14, 250 Wis. 2d 112, 640 

N.W.2d 546 ("[W]e reject Daggett's assertion that blood draws 

must take place in a hospital setting in order to be 

constitutionally reasonable. Although Schmerber urged caution, 

it did not categorically reject the possibility that a blood 

draw could take place in a non-medical setting." (citation 

omitted)).
No. 2015AP656-CR 

25

¶46 Finally, we would be remiss if we failed to mention 

the lack of evidence that Kozel ever objected to the particular 

circumstances of the blood draw. See Schmerber, 384 U.S. at 771 

("Petitioner is not one of the few who on grounds of fear, 

concern for health, or religious scruple might prefer some other 

means of testing . . . ."); cf. Tullberg, 359 Wis. 2d 421, ¶31 

("A warrantless, nonconsensual blood draw of a suspected drunken 

driver complies with the Fourth Amendment if: . . . (4) the 

suspect did not reasonably object to the blood draw."). 

¶47 In sum, the blood draw that occurred in this case was 

constitutionally reasonable. See, e.g., State v. Johnston, 336 

S.W.3d 649, 651-53, 655, 664 (Tex. Crim. App. 2011) (blood draw 

in "blood-draw room" at police station by police officer 

certified as an intermediate EMT assisted by police officer 

certified as a basic EMT held constitutionally reasonable), 

cert. denied, 132 S. Ct. 212 (2011). 

V. CONCLUSION

¶48 We conclude that the EMT who drew Kozel's blood was a 

"person acting under the direction of a physician," Wis. Stat. 

§ 343.305(5)(b), and that Kozel's blood was drawn in a 

constitutionally reasonable manner. Accordingly, we reverse the 

decision of the court of appeals.

By the Court.-The decision of the court of appeals is 

reversed.
No. 2015AP656-CR.awb

1

¶49 ANN WALSH BRADLEY, J. (dissenting). As the State 

has acknowledged, this case in essence presents a question of 

sufficiency of evidence.

¶50 Because we are a law developing court setting 

precedent for the entire state, we generally do not accept for 

review sufficiency of evidence cases because they often are tied 

to the unique facts of a particular case and thus have very 

limited precedential value.

¶51 Likewise, we generally eschew cases of statutory 

interpretation where the statute has subsequently changed 

because of the limited application of the decision. 

Nevertheless, in this case the majority tackles both 

circumstances and reverses the unpublished decision of the court 

of appeals.

¶52 The petitioner, State of Wisconsin, asserts that the 

court of appeals erred when it determined that the State failed 

to present sufficient evidence to show that the EMT was a 

"person acting under the direction of a physician" as required 

by statute.1 It further contends that under the facts presented 

it has demonstrated that the blood draw was constitutionally 

reasonable under the Fourth Amendment of the United States 

Constitution.

¶53 The majority agrees with the State. Majority op., 

¶¶34, 48. However, it missteps in its analysis when construing 

 

1 Wis. Stat. § 343.305(5)(b) (2011-12). All subsequent 

references to the Wisconsin Statutes are to the 2011-12 version 

unless otherwise indicated.
No. 2015AP656-CR.awb

2

the former statute by conflating the terms "direction" and 

"authorization," thereby sub silentio writing into the statute a 

word not used or intended by the legislature.

¶54 In determining that Kozel's blood draw satisfied 

statutory requirements and was constitutionally reasonable, the 

majority also errs when it excuses the failure of the State to 

present evidence sufficient to demonstrate that the EMT in this 

case was acting under the direction of a physician.

¶55 Contrary to the majority, I conclude that there is 

insufficient evidence to determine that the EMT-Intermediate 

technician who drew Kozel's blood was a "person acting under the 

direction of a physician" as required by Wis. Stat. 

§ 343.305(5)(b). Likewise, I determine that Kozel's blood draw 

was not constitutionally reasonable based upon the facts of 

record.

¶56 I would affirm the court of appeals and remand to the 

circuit court for further proceedings. Accordingly, I 

respectfully dissent.

I

¶57 Wisconsin's implied consent statute authorizes legal 

blood draws in order to obtain evidence of intoxication. 

Section § 343.305(5)(b) provides in relevant part that "[b]lood 

may be withdrawn . . . to determine the presence or quantity of 

alcohol . . . only by a physician, registered nurse, medical 

technologist, physician assistant or person acting under the 

direction of a physician." In this case, Kozel's blood was 
No. 2015AP656-CR.awb

3

drawn by an EMT-Intermediate Technician ("the EMT") in a prebooking room in the Sauk County Jail.

¶58 The State asserts that there was sufficient evidence 

to support the requirement that the EMT was a "person acting 

under the direction of a physician" pursuant to Wis. Stat. 

§ 343.305(5)(b). The majority embraces the State's position.

¶59 In interpreting the statute, the majority relies on a 

plain meaning analysis of the term "direction." Majority op., 

¶35. Initially it follows the court of appeals approach, 

adopting the dictionary definition which requires "guidance or 

supervision of action, conduct or operation." Id. However, it 

rejects the court of appeals conclusion that there is 

insufficient evidence in this record to show that the EMT was a 

"person acting under the direction of a physician." Majority 

op., ¶¶35-39 (citing Webster's Third New International 

Dictionary 640 (1993)).

¶60 The majority reasons that "[t]he concept of 

'direction' reasonably contemplates varying degrees of proximity 

between a director and the person whose actions he or she guides 

rather than a single, set relationship applicable in all cases." 

Majority op., ¶37. I agree.

¶61 However, it proceeds next to set up a strawman only to 

subsequently knock it down when it concludes that "[h]ad the 

legislature envisioned only one manner of 'direction,' it would 

have spelled out the specific procedures that a physician and 

the person he or she directs must follow to meet that 

requirement." Id. According to the majority, "[w]e will not 
No. 2015AP656-CR.awb

4

read into the statute a limitation the plain language does not 

evidence." Majority op., ¶39 (quoting Cty. of Dane v. LIRC, 

2009 WI 9, ¶33, 315 Wis. 2d 293, 759 N.W.2d 571).

¶62 No one even attempts to advance an argument that the 

statute should be read in such a limited fashion. Not the 

defendant, not the court of appeals and certainly not this 

dissent.

¶63 Rather, what needs to be done, and what the majority 

skirts by setting up the fabricated argument, is an examination 

of whether the evidence presented here demonstrates that the EMT 

was acting under the physician’s direction, that is, under the 

"guidance or supervision of action, conduct or operation."

¶64 Although this court often resorts to using dictionary 

definitions when engaging in statutory construction, we also 

often find guidance by looking at how other courts have defined 

the same statutory language. In People v. Gregg, the Illinois 

court of appeals interpreted the statutory phrase "acting under 

the direction of a physician" in a similar context to this case.2 

526 N.E.2d 537, 539 (Ill. App. Ct. 1988).

¶65 The Illinois court of appeals defined "acting under 

the direction" of a physician to mean that:

 

2 77 Ill. Adm. Code 510.110(a)(2) (1985) provides in 

relevant part:

The blood sample shall be collected per venipuncture 

by a physician licensed to practice medicine by a 

registered nurse or by a trained phlebotomist acting 

under the direction of a licensed physician (emphasis 

added).
No. 2015AP656-CR.awb

5

[W]ork is performed under the guidance and direction 

of a supervisor who is responsible for the work, who 

plans work and methods, who is available on short 

notice to answer questions and deal with problems that 

are not strictly routine, who regularly reviews the 

work performed, and who is accountable for the 

results.

Id. (citing 77 Ill. Am. Code 300.330, 330.330, 350.330, 370.240, 

390.330 (1985)).

¶66 The physician in Gregg was not present when a trained 

phlebotomist performed a blood draw, but was "responsible for 

supervising emergency room procedures." Id. at 538. Thus, 

Gregg concluded that "[i]n light of the complex and extensive 

procedures already required in performing a blood analysis," a 

trained phlebotomist acting under a physician's supervision 

sufficiently ensured the accuracy and uniformity of blood 

analysis. Id. at 539.

¶67 Armed with the dictionary definition of "direction" 

and further informed by Gregg's interpretation of the statutory 

phrase, I normally would turn next to an examination of whether 

the evidence here is sufficient to meet the statutory directive.

¶68 Yet, I would be remiss to ignore an additional 

impediment in the majority’s statutory analysis. It missteps 

when it conflates the statutory term "direction" with a 

distinctly different term "authorization."

¶69 As set forth more fully above, "direction" requires 

guidance and supervision. The plain meaning of "authorize" is 

defined as "to give permission for (something); sanction."3

 

3 The majority does not include the definition of 

"authorize" in its opinion.
No. 2015AP656-CR.awb

6

American Heritage Dictionary of the English Language 120 (5th 

ed. 2011). Despite this distinction between "direction" and 

"authorization," in determining that the EMT was acting under 

the direction of a physician, the majority relies almost 

entirely on the fact that he was authorized by Dr. Mendoza to 

draw blood. See e.g., majority op., ¶36 ("The evidence below 

showed that Dr. Mendoza, the medical 'director' of BDAS of at 

least seven years, specifically 'authorized a standing order' 

for BDAS EMT intermediate technicians such as Kozel to perform 

blood draws when requested to do so by law 

enforcement. . . . Dr. Mendoza's authorization was formalized in 

writing . . . .") (emphasis added); see also majority op., ¶¶2, 

15, 38.4

¶70 The majority relies upon an August 21, 2009 letter 

written by Dr. Mendoza, the Medical Director for the Baraboo 

District Ambulance Service, which authorized the EMT to perform 

the blood draws at the request of law enforcement. 

Specifically, Dr. Mendoza's letter "authorized a standing order 

for the EMT-Paramedics and approved EMT-Intermediate Technicians 

authority to draw legal blood draws at the request of law 

 

4 Majority op., ¶2 ("The EMT was authorized in writing by a 

physician to draw blood when asked to do so by law 

enforcement."); majority op., ¶15 ("The State introduced into 

evidence . . . '[A] letter from Dr. Mendoza to our staff, our 

administration stating that the authorized EMT paramedics and 

intermediate technicians may perform legal blood draws.'"); 

majority op., ¶38 (" . . . Dr. Mendoza issued a standing order 

authorizing EMTs to draw blood when requested to do so by law

enforcement.").
No. 2015AP656-CR.awb

7

enforcement officers." It further states that "[t]he Baraboo 

District Ambulance Services EMT-Paramedics and EMT-Intermediate 

Technicians are acting under the direction of my physician 

license."

¶71 As the court of appeals in this case explained, 

evidence that an EMT was authorized to act under a physician's 

license is not evidence that the EMT was acting under the 

physician's direction. State v. Kozel, No. 2015AP656-CR, 

unpublished slip op., ¶13 (Wis. Ct. App. Nov. 12, 2015). Dr. 

Mendoza's letter authorizes EMTs to conduct blood draws because 

it grants them the authority to do so at the request of law 

enforcement. However, it tells us nothing about the physician’s 

guidance or supervision of the EMT's actions when conducting a 

blood draw.

¶72 The distinction between "directed" and "authorized" is 

further supported by recent changes to the statutory provision 

at issue here. Pursuant to 2013 WI Act 224, the legislature 

amended section 343.305(5)(b) to include medical professionals 

who are authorized to draw blood as a distinct category from a 

"person acting under the direction of a physician." Under the 

amended statute, a blood draw may now be performed by authorized 

medical professionals:

Blood may be withdrawn . . . to determine the presence 

or quantity of alcohol . . . only 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.

Wis. Stat. § 343.305(5)(b) (2013-14) (emphasis added).
No. 2015AP656-CR.awb

8

¶73 According to the Wisconsin Legislative Council Act 

Memorandum for 2013 Wis. Act 224, the 2011-2012 version of the 

statute at issue in this case provided that only individuals 

"acting under the direction of a physician could draw blood." 

Conversely, the amended statute now allows a phlebotomist or 

other medical professional who is authorized to draw blood, in 

addition to the other health care providers listed under prior 

law:

Under prior law, only a physician, registered nurse, 

medical technologist, physician assistant, or personal 

acting under the direction of a physician could draw 

blood for alcohol or controlled substance testing.

Act 224 allows a phlebotomist or other medical 

professional who is authorized to draw blood, in 

addition to the other health care providers listed 

under prior law, to draw blood for alcohol or 

controlled substance testing.

Wisconsin Legislative Council Act Memorandum for 2013 Wis. Act 

224 (April 14, 2014), available at 

http://docs.legis.wisconsin.gov/2013/related/lcactmemo/act224.

¶74 This statutory change suggests that the EMT in this 

case, who was formerly not permitted to draw blood under the 

statute unless "acting under the direction of a physician," now 

may be permitted to draw blood under the statute if he qualifies 

as an other medical professional who is authorized to draw 

blood.

¶75 Unlike the newly amended statute, the 2011-12 version 

of the statute that is the subject of our analysis here uses the 

term "direction" but not the term "authorize." In conflating 

the two terms in its analysis, the majority is sub silencio 
No. 2015AP656-CR.awb

9

writing into the prior statute terms not then used or intended 

by the legislature.

II

¶76 Perhaps because the majority conflates "direction" 

with "authorization," it incorrectly concludes that there was 

sufficient evidence that the EMT was acting under the direction 

of a physician as required by Wis. Stat. § 343.305(5)(b). This 

misstep allows the majority to disregard the lack of evidence 

presented in this case in contrast to evidence deemed sufficient 

in other similar cases.

¶77 In State v. Penzkofer, 184 Wis. 2d 262, 265, 516 

N.W.2d 774 (Ct. App. 1994), a certified laboratory technician 

performed a blood draw in a hospital, but without a physician 

present in the room at the time of the blood draw. However, the 

hospital pathologist testified that the technician performed 

laboratory functions under his general supervision and 

direction. Id.

¶78 Significantly, the physician identified a written 

hospital protocol setting forth the detailed procedures that 

guided a technician performing a blood draw. Id. These

procedures were reviewed and revised, and the protocol was dated 

and signed by the physician. Id. The physician testified that 

he did not "stand over [the technician's] shoulder" because 

"[t]hen I might as well draw it myself . . . or I'm busy with 

other work . . . so I couldn't be two places at one time." Id.

¶79 Considering the evidence of written procedures and 

protocols that were reviewed in a hospital setting by a 

physician, the Penzkofer court concluded that "the procedure 
No. 2015AP656-CR.awb

10

used here meets the legislature's concern for testing in such a 

manner as to yield reliable and accurate results. Id. at 266. 

It explained that "[h]ospital laboratories are subject to 

detailed and stringent standards in almost every aspect of their 

facilities and services." Id. (citing Wis. Admin. Code § HSS 

124.17). Penzkofer reasoned further that "[t]he certified lab 

assistant followed a written protocol approved and kept current

by the pathologist." Id. (emphasis added).

¶80 The court of appeals concluded that "Penzkofer's 

concern for safety and accuracy are addressed by those standards 

as well as the procedures in place here." Id. Conversely, the 

majority opinion neglects to consider how the lack of protocols 

setting forth detailed procedures for performing a blood draw, 

as well as the lack of detailed sanitation standards governing 

blood draws at the jail, might undermine confidence in the 

safety and accuracy of Kozel's blood drawn.

¶81 Additionally, unlike here, in another unpublished case 

involving a blood draw performed by an EMT at the Sauk County 

jail, the State presented evidence of written protocols and 

procedures that guided the technician. In State v. Heath, No. 

2014AP2466-CR, unpublished slip op., ¶5 (Wis. Ct. App. Sept. 15, 

2016), the State introduced a letter from the paramedic program 

coordinator for the Department of Health Services ("DHS") that 

"approved the Baraboo District Ambulance Service's revised and 

updated protocol for legal blood draws, and which authorized the 

ambulance service to implement the protocol."
No. 2015AP656-CR.awb

11

¶82 Even in cases where written protocols setting forth 

detailed procedures were not introduced, the State presented 

significantly more evidence of direction by a physician than was 

introduced here. As explained above, "direction" requires 

"guidance or supervision of action." See also Gregg, 526 N.E.2d 

at 539 (concluding that there was sufficient evidence of 

direction when a supervising physician planed work and methods, 

was available on short notice, regularly reviewed the work 

performed, and was accountable for the results).

¶83 For example, in State v. Osborne, No. 2012AP2540-CR, 

unpublished slip op., ¶19 (Wis. Ct. App. June 27, 2013), 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." Accordingly, the 

blood draw was performed under the direction of a physician 

because he regularly reviewed the work performed and was 

accountable for the results.

¶84 Contrary to Penzkofer and other unpublished cases such 

as Heath and Osbourne, the facts in the record here demonstrate 

an absence of direction by a physician, including an absence of 

written protocols setting forth the detailed procedures that the 

EMT must follow when performing a blood draw. Here, the only 

evidence introduced was the testimony of the EMT and Dr. 

Mendoza's letter. When asked about whether there were written 

protocols setting forth procedures for performing a blood draw, 
No. 2015AP656-CR.awb

12

the EMT equivocated and could not identify any. He responded 

"[r]egarding the blood draw, I would have to check."

¶85 In other cases, even where detailed procedures were 

not introduced, there was testimony that the EMT had regular 

contact with the supervising physician who took responsibility 

for the EMT's work. See, e.g., Osborne, No. 2012AP2540-CR, 

unpublished slip op., ¶19. The EMT in Osbourne testified that 

he was in at least monthly contact with the supervising 

physician. Id. Unlike Osbourne where the EMT testified that 

the supervising physician signed off on the performance of his 

duties, the EMT in this case testified that he had never spoken 

to Dr. Mendoza about the letter authorizing him to conduct blood 

draws. Rather, the EMT testified only that Dr. Mendoza 

"occasionally show[ed] up" at his place of work. Absent from 

the record is any indication that when Dr. Mendoza occasionally 

appeared that the EMT had any contact whatsoever with the 

physician——let alone any supervision or guidance from him.

¶86 Contrary to the majority's assertion, the facts in the 

record demonstrate a total absence of guidance and supervision 

necessary to support a determination that the EMT here was 

acting under the direction of a physician:

 The State did not introduce into evidence any protocols or 

procedures guiding blood draws by an EMT.

 There are no protocols to ensure that the jail's blood 

draw room is sterile or meets the appropriate standard.

 Dr. Mendoza did not train the EMT.
No. 2015AP656-CR.awb

13

 Dr. Mendoza had never been to the jail nor inspected the 

room where blood is drawn at the jail.

 Dr. Mendoza never witnessed the EMT perform any blood 

draws.

 There is no evidence that Dr. Mendoza approved or 

supervised the EMT's blood draw techniques on a regular or 

even irregular basis.

 There is no evidence that the EMT had regular or even 

irregular contact with Dr. Mendoza.

¶87 In short, no evidence was presented of any supervision 

of this EMT by Dr. Mendoza, whether it be general or direct. 

Additionally, there is a dearth of evidence demonstrating any 

guidance by Dr. Mendoza. Thus, contrary to the majority, I 

conclude that there is insufficient evidence to determine that 

the EMT-Intermediate who drew Kozel's blood was a "person acting 

under the direction of a physician." Wis. Stat. 

§ 343.305(5)(b).

III

¶88 Given the state of the evidentiary record, I turn next 

to examine whether the blood draw here was constitutionally 

reasonable under the Fourth Amendment of the United States 

Constitution, which provides that "[t]he right of the people to 

be secure in their persons, houses, papers, and effects, against 

unreasonable searches and seizures shall not be 

violated . . . ."

¶89 In the context of a blood draw, the United States 

Supreme Court has explained that "[t]he integrity of an 
No. 2015AP656-CR.awb

14

individual's person is a cherished value of our society." 

Schmerber v. California, 384 U.S. 757, 772 (1966). Accordingly, 

the "overriding function of the Fourth Amendment is to protect 

personal privacy and dignity against unwarranted intrusion by 

the State." Id. at 767.

¶90 The Fourth Amendment does not prohibit all intrusions, 

however, but only those which are not justified under the 

circumstances or are made in an improper manner. Id. at 768. 

Thus, the question in Schmerber, as in this case, was whether 

"the means and procedures employed in taking [] blood respected 

relevant Fourth Amendment standards of reasonableness." Id.

¶91 Relying on Schmerber, the majority contends that 

"[t]he blood test procedure has become routine in our everyday 

life" and "that for most people the procedure involves virtually 

no risk, trauma or pain." Majority op., ¶42 (citing 384 U.S. at 

771). The majority does not acknowledge, however, that the 

United States Supreme Court has recently emphasized the serious 

nature of a blood test.

¶92 In Birchfield v. North Dakota, 136 S. Ct. 2160, 2178 

(2016), the Supreme Court explained that "[b]lood tests are a 

different matter [from breath tests]. They 'require piercing 

the skin' and extract a part of the subject's body." (citations 

omitted). As Birchfield reasoned, although many people submit 

to blood draws, "the process is not one they relish." Id. 

Additionally, the Birchfield court noted that blood samples "can 

be preserved and from which it is possible to extract 

information beyond a simple BAC reading." Id.
No. 2015AP656-CR.awb

15

¶93 Ignoring the serious and intrusive nature of a blood 

draw, the majority asserts that "[t]he important point for 

constitutional purposes is that the evidence demonstrated that 

[the EMT] was thoroughly trained and experienced in properly 

drawing blood." Majority op., ¶44. Schmerber was explicit, 

however, that "we reach this judgment only on the facts of the 

present record." 384 U.S. at 772. Thus, it warned that in 

other circumstances, such as a blood draw administered at a 

jail, may not be constitutionally reasonable:

Petitioner's blood was taken by a physician in a 

hospital environment according to accepted medical 

practices. We are thus not presented with the serious 

questions which would arise if a search . . . were 

made by other than medical personnel or in other than 

a medical environment——for example, if it were 

administered by police in the privacy of the 

stationhouse. To tolerate searches under these 

conditions might invite an unjustified element of 

personal risk of infection and pain.

Id. at 771-72.

¶94 In State v. Daggett, 2002 WI App 32, ¶¶8-15, 250 

Wis. 2d 112, 640 N.W.2d 546, the Wisconsin court of appeals 

addressed whether under Schmerber, a warrantless blood draw 

performed by a doctor in a police booking room was reasonable 

under the Fourth Amendment. The majority parses Daggett, citing 

it only once for the proposition that a constitutionally 

reasonable blood draw can take place in a non-medical setting. 

Majority op., ¶45. It does not, however, analyze where this 

case falls on the spectrum of reasonableness set forth in 

Daggett.
No. 2015AP656-CR.awb

16

¶95 Daggett moved to suppress the results of the blood 

test on the grounds that the blood draw was unlawful because it 

took place in the county jail booking room, rather than in a 

hospital. Daggett, 250 Wis. 2d 112, ¶5. The Daggett court 

concluded that "the method used to take the blood sample was a 

reasonable one and was performed in a reasonable manner." Id., 

¶14.

¶96 According to the Daggett court, "[r]ather than 

establishing a bright-line rule, Schmerber recognized a spectrum 

of reasonableness." Id., ¶15. It explained that a blood draw 

by a medical professional in a medical setting is generally 

reasonable, but blood withdrawn by a non-medical professional in 

a non-medical setting would raise "serious questions" of 

reasonableness. Id. (citation omitted). Thus, under Daggett, a 

blood draw "in a jail setting may be unreasonable if it 'invites 

an unjustified element of personal risk of infection and pain.'" 

Id., ¶16 (citing Schmerber, 384 U.S. at 772).

¶97 Under Daggett's spectrum of reasonableness, the blood 

draw here falls below the standard of anything that has 

previously been determined to be reasonable. In Schmerber, the 

blood draw was performed by a physician in a hospital. 384 U.S. 

at 758. The blood draw in Daggett took place in a jail, but was 

performed by a physician. 250 Wis. 2d 112, ¶4. In this case, 

Kozel's blood draw was performed by an EMT-Intermediate in a 

jail.

¶98 As such, this case represents the latter end of the 

Daggett spectrum of reasonableness. Although a blood draw by an 
No. 2015AP656-CR.awb

17

EMT in a jail may not be per se unreasonable, it is unreasonable 

under the facts of this case. As set forth above, there is no 

evidence of any written protocols or procedures in the record. 

Dr. Mendoza did not train the EMT, had never witnessed him 

perform a blood draw, nor had he ever approved of his blood draw 

techniques.

¶99 Additionally, there are no protocols to ensure that 

the jail's blood draw room is sterile. Admittedly, the EMT 

testified that the pre-booking room looked clean. However, the 

pre-booking room where the blood draw was administered was also 

used to perform breathalyzer tests on those arrested for drunk 

driving and for miscellaneous storage. According to the 

evidence, Dr. Mendoza had never been to the jail let alone

inspected the pre-booking room where blood is drawn.

¶100 Other than testimony regarding the fact that jail 

staff have a schedule for cleaning, which is initialed by the 

cleaner and posted on the wall, there is no other evidence that 

the pre-booking room in the jail meets the high sanitary 

standards of a hospital. To the contrary, such an initialed and 

posted cleaning schedule is akin to those found in many

department or convenience store restrooms.

¶101 For example, the Wisconsin Administrative Code 

requires that hospitals maintain a sanitary environment, that 

sterilizing services be available at all times, and that a 

committee be established at each hospital to implement measures 

to make sure infections do not spread. Wis. Admin. Code DHS 

§ 124.08(2), (4)(b) and (e). The rules for jails are less 
No. 2015AP656-CR.awb

18

stringent, requiring only monthly sanitation inspections. Wis. 

Admin. Code DOC § 350.12(13).

¶102 It is a well-established principle that "[i]t is the 

duty of courts to be watchful for the constitutional rights of 

the citizen, and against stealthy encroachments thereon." 

Schneckloth v. Bustamonte, 412 U.S. 218, 229 (1973) (citation 

omitted). Permitting blood draws in a jail without written 

protocols and procedures could erode Fourth Amendment 

protections beyond what was contemplated in Schmerber and 

Daggett.

¶103 Given the absence of written protocols and procedures, 

the record here lacks the same evidence of safety and accuracy 

present in cases in which a blood draw has been determined to be 

constitutionally reasonable. Thus, I determine that the 

evidentiary record is insufficient to conclude that the blood 

draw administered here was performed in a constitutionally 

reasonable manner.

¶104 For the reasons set forth above, I respectfully 

dissent.

¶105 I am authorized to state that Justice SHIRLEY S. 

ABRAHAMSON joins this dissent.
No. 2015AP656-CR.awb

1