ARGUMENT: October 18, 2016
of a decision of the Court of Appeals. Reversed.
Sauk Guy D. Reynolds Judge
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.
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.
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This is a review of an unpublished decision of the court of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unpublished slip op.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's 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 Kozel, unpublished slip op., ¶1.
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),  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.
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.
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.
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.
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.
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).
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.
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.
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 . . . .").
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.
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."
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
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
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."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
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.
Clare Hospital [address]
Baraboo, WI, 53913
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."
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
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
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
There are various shelves and stacks of paperwork.
Additionally this is the location where the unused and new
legal blood draw kits are stored.
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."
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
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."
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
testified that all of the classes are certified.
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
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
"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."
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
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."
After hearing all of this testimony, the circuit court orally
denied Kozel's motion ...