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Date: 01-16-2017

Case Style:

State of Wisconsin v. Patrick K. Kozel

Case Number: 2015AP656-CR

Judge: ANNETTE KINGSLAND ZIEGLER

Court: Supreme Court of Wisconsin

Plaintiff's Attorney:

Michael C. Sanders, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general

Defendant's Attorney:






Sarah M. Schmeiser




Tracey A. Wood


Description: 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.
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.
カ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.
カ6 Deputy Schlough asked Kozel to exit his vehicle and
once again asked him "how much he had to drink and where he was
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. ァ 340.01(46m)
(2013-14). Deputy Schlough placed Kozel in handcuffs and under
arrest. Kozel was then taken to the Sauk County jail.
カ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. ァ 340.01(46m) (2013
14).
II. PROCEDURAL BACKGROUND
カ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. ァ 346.63(1)(a) (2013-14), second offense, see Wis.
Stat. ァ 346.65(2)(am)2. (2013-14), and one count of operating
with a prohibited alcohol concentration, contrary to Wis. Stat.
ァ 346.63(1)(b) (2013-14), second offense, see Wis. Stat.
ァ 346.65(2)(am)2. (2013-14). On November 5, 2013, Kozel filed
No. 2015AP656-CR

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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.
カ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.
カ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. ァ 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 . . . .").
カ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.
カ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."
カ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."
カ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."
カ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]
カ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."
カ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.
カ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."
カ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

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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."
カ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."
カ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."
カ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.
カ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."
カ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

カ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."
カ26 After hearing all of this testimony, the circuit court
orally denied Kozel's motion pertaining to the blood draw that
occurred.
カ27 On January 9, 2015, Kozel pleaded no contest to one
count of operating a motor vehicle while intoxicated, contrary
to Wis. Stat. ァ 346.63(1)(a) (2013-14), second offense, see Wis.
Stat. ァ 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.
カ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., カ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., カ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)).
カ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
カ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, カ27, 359 Wis. 2d 421,
857 N.W.2d 120 (quoting State v. Robinson, 2010 WI 80, カ22, 327
Wis. 2d 302, 786 N.W.2d 463).
No. 2015AP656-CR

15

カ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, カ42, 362
Wis. 2d 577, 866 N.W.2d 563 (quoting 118th St. Kenosha, LLC v.
DOT, 2014 WI 125, カ19, 359 Wis. 2d 30, 856 N.W.2d 486).
IV. ANALYSIS
カ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.
ァ 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
カ33 Wisconsin Stat. ァ 343.305, "known as the implied
consent law," Village of Elm Grove v. Brefka, 2013 WI 54, カ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. ァ 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, カ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, カ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.
ァ 343.305(2). We examine a "single, narrow aspect of the
procedures set forth in the implied consent law," Brefka, 348
Wis. 2d 282, カ19, namely the set of individuals authorized to
draw blood under the statute.
カ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. ァ 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, ァ 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
ァ 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.
カ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, カ45, 271 Wis. 2d 633, 681 N.W.2d 110
(citations omitted) (quoting Seider v. O'Connell, 2000 WI 76,
カ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. ァ 343.305(5)(b) (2013-14) (emphasis added).
No. 2015AP656-CR

18

カ13 (quoting Direction, Webster's Third New International
Dictionary 640 (1993)). This definition is adequate for our
purposes.
カ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.
カ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.").
カ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. ァ 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.
カ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, カ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
カ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, カ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, ァ 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, カ14, 327 Wis. 2d 252, 786 N.W.2d 97 (citing State v. Kramer, 2009 WI 14, カ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).
カ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).
カ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覧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.
カ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覧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覧was constitutionally reasonable. We reject this argument.7
カ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覧though it did not decide the issue覧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.
カ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覧
indeed, some jails覧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, カ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

カ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, カ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.").
カ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).

Outcome:

We conclude that the EMT who drew Kozel's blood was a "person acting under the direction of a physician," Wis. Stat.
ァ 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.

Plaintiff's Experts:

Defendant's Experts:

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