Updated on February 6th, 2024 at 03:26 pm
Wisconsin is one of the states that operates under the Implied Consent Law. As such, you are required by law to submit to a breath and blood test when you’re arrested on suspicion of OWI or face penalties if found to have improperly refused. When submitting to these tests, your question is, who can conduct a Wisconsin OWI blood draw?
If Wisconsin law enforcement officers pull you over on suspicion of drunk driving, to obtain a chemical sample under Wisconsin’s implied consent law, they must read you the contents of ‘Informing the Accused’. This form requests your submission of blood and/or breath samples. If you agree, the police will have your blood drawn.
If you refuse consent, contact the experienced OWI attorneys at DuiDefenseWi.com, for a free consultation.
Wisconsin police officers to start drawing blood for OWI investigations
In a surprising interview with Wisconsin Public Radio’s “The Morning Show,” head of the State Hygiene Lab, Amy Miles, indicated that law enforcement officers may begin taking blood samples from suspected drunk drivers at the start of 2024.
Ms. Miles stated that this would reduce the burden on medical personnel at busy hospitals. While it may be reasonable in theory, this proposal has several issues. First, it’s essential to analyze, under current law, who is permitted to perform a legal blood draw.
Who is authorized to draw blood during OWI investigations in Wisconsin?
According to Wisconsin Statutes § 343.305, only a phlebotomist, physician assistant, medical technologist, registered nurse, physician, or any medical professional authorized to draw blood or under the instruction of a physician can test for the quantity or presence of a controlled substance, alcohol, controlled substance analog, or any other drug, or a combination of the above in your blood.
The law insists on medical experts drawing blood from an OWI suspect because of the importance of blood alcohol concentration evidence in court. A common error in BAC blood testing is improper drawing procedures. During a BAC test, the blood should be drawn into a testing tube with a white powder (a mixture of anticoagulant and preservative).
If the blood sample isn’t stored properly, it can ferment, increasing the blood alcohol content levels. If the blood sample doesn’t have sufficient anticoagulant, the blood starts to clot, resulting in high artificial BAC levels.
If I am arrested for an OWI, who is permitted to draw blood?
The only possible exception to the current law that would permit a law enforcement officer to draw blood would be the “under the direction of a physician” exception. This exception was analyzed in the case State v. Kozel, where EMTs drew blood from suspected drunk drivers at the request of law enforcement.
According to testimonies given, Dr. Mendoza had authorized the EMTs to draw blood upon the request of a law enforcement officer. But instead of physically observing and supervising the blood draw, the doctor made himself accessible through a telephone.
However, the Wisconsin Supreme Court decided that the evidence presented by the state was sufficient to show that the Emergency Medical Technician (EMT) who conducted the blood draw in the Operating While Intoxicated (OWI) case did so under the direction of a physician.
The court noted that requiring further evidence to prove the EMT’s compliance with the physician’s guidance would mean demanding a more specific or explicit form of direction than what is outlined in subsection (5)(b), which the statute does not mandate.
The deduction from this case is that a physician can issue a standing order authorizing non-medical professionals to perform legal blood draws. We should also note that blood draws are not riskless. Possible side effects include hematoma, phlebitis, and other medical conditions.
Do law enforcement officers want to perform the blood draws?
They may not want to. However, there may be an incentive of increased pay for any officer who’s willing to go through blood draw training. Currently, about a dozen states have programs where officers perform blood draws.
The downside is that law enforcement agencies that perform blood draws would have additional liability for the officer’s conduct. They’d have to fund and pay for the officer’s additional training and certification. They may also be required to pay officers a high salary for the extra job responsibilities.
Contact Nathan J Dineen, Attorney at Law
If you’re arrested for drunk driving and provide a blood sample, hiring an attorney knowledgeable in all aspects of blood testing is essential. We specialize in defending against blood alcohol test results. It is crucial to analyze the techniques used to clean the inspection site, the mix of preservatives and anticoagulants, and inspect the handling of the sample, the chain of custody, and the chromatography techniques used to analyze the sample.
Attorney Nathan J Dineen understands the science behind blood testing. His training permits him to identify and mitigate potential problems that other attorneys may miss with your sample. Contact Nate for your initial consultation and OWI representation in Wisconsin.