                                                                 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   Tracey      A.           Wood.
                                                                             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,
                                                                        FILED
               Plaintiff-Respondent-Petitioner,

       v.                                                          JAN 12, 2017
                                                                      Diane M. Fremgen
Patrick K. Kozel,                                                  Clerk of Supreme Court

               Defendant-Appellant.




       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   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.


                                              2
                                                                    No.   2015AP656-CR



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
                                           3
                                                                  No.     2015AP656-CR



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
                                          4
                                                                         No.    2015AP656-CR



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
                                          5
                                                                              No.     2015AP656-CR



"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


                                                 6
                                                               No.     2015AP656-CR



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.


                                      7
                                                                               No.     2015AP656-CR


      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,


                                                 8
                                                                           No.     2015AP656-CR



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.

                                               9
                                                           No.    2015AP656-CR


           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,

                                    10
                                                             No.   2015AP656-CR



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

                                     11
                                                               No.      2015AP656-CR


       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.




                                      12
                                                                      No.     2015AP656-CR



       ¶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


                                           13
                                                                  No.   2015AP656-CR



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).


                                           14
                                                                        No.     2015AP656-CR



      ¶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.


                                             15
                                                               No.    2015AP656-CR



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)
                                         16
                                                                          No.     2015AP656-CR



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).


                                           17
                                                                               No.     2015AP656-CR



¶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
                                                   18
                                                                       No.     2015AP656-CR



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
                                            19
                                                                      No.    2015AP656-CR



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.


                                            20
                                                                 No.   2015AP656-CR



(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

                                        21
                                                           No.     2015AP656-CR


       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




                                       22
                                                            No.    2015AP656-CR



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").


                                      23
                                                                             No.   2015AP656-CR



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)).


                                               24
                                                                    No.     2015AP656-CR



     ¶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.




                                         25
                                                                   No. 2015AP656-CR.awb


      ¶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.


                                             1
                                                                       No. 2015AP656-CR.awb


the   former      statute       by       conflating       the    terms        "direction"          and

"authorization," thereby sub silencio 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



                                                  2
                                                              No. 2015AP656-CR.awb


drawn by an EMT-Intermediate Technician ("the EMT") in a pre-

booking 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

                                              3
                                                         No. 2015AP656-CR.awb


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).


                                         4
                                                                         No. 2015AP656-CR.awb

       [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.


                                                      5
                                                               No. 2015AP656-CR.awb


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.").


                                           6
                                                              No. 2015AP656-CR.awb


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).



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       ¶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



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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

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                                                            No. 2015AP656-CR.awb


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."



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      ¶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,

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                                                                     No. 2015AP656-CR.awb


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.



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        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

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                                                                 No. 2015AP656-CR.awb


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.

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                                                                   No. 2015AP656-CR.awb


       ¶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.



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                                                          No. 2015AP656-CR.awb


       ¶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

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                                                                      No. 2015AP656-CR.awb


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

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                                                                   No. 2015AP656-CR.awb


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.




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