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State v. Kozel

Supreme Court of Wisconsin

January 12, 2017

State of Wisconsin, Plaintiff-Respondent-Petitioner,
Patrick K. Kozel, Defendant-Appellant.

          ORAL ARGUMENT: October 18, 2016

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

         Circuit Sauk Guy D. Reynolds Judge

          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.


         ¶1 This is a review of an unpublished decision of the court of appeals, State v. Kozel, No. 2015AP656-CR, unpublished slip op.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's[1] 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 Kozel, unpublished slip op., ¶1.

         ¶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.


         ¶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 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 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).


         ¶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 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 "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 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):

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,

         Manuel Mendoza, M.D.

          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, 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.
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, 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 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.

         ¶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 ...

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