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State v. Lanser10/20/1999
failed to comply with § 343.305(5)(b), Stats., which reads in relevant part:
Blood may be withdrawn from the person arrested [for an operating while intoxicated (OWI)] violation ... to determine the presence or quantity of alcohol ... in the blood only by a physician, registered nurse, medical technologist, physician assistant or a person acting under the direction of a physician.
. Lanser maintains that a proper foundation for the admissibility of her test results (State's exhibit 3) was lacking because the person who drew Lanser's blood at Lakeland Hospital was not called to testify. Whether § 343.305(5)(b), Stats., requires the person drawing the OWI evidentiary blood to appear and personally testify that he or she is qualified to do so presents a question of statutory interpretation. We review such questions of law de novo. See State v. Wilson, 170 Wis.2d 720, 722, 490 N.W.2d 48, 50 (Ct. App. 1992). We consider matters outside of the statutory language only if the statute is ambiguous. See State v. Kenyon, 85 Wis.2d 36, 49, 270 N.W.2d 160, 166 (1978).
. While § 343.305(5)(b), Stats., unequivocally requires that the blood be drawn by a qualified person, it does not specifically address the manner of establishing that qualification. Here, the status of the person drawing the blood was established by the arresting officer, Deputy Alan Gorecki, who testified that he was present at the hospital and observed Lanser's blood being drawn by a technician. State's exhibit 3 was identified by Fritsch as the blood and urine analysis form contained in the blood alcohol kit, and Fritsch recorded Lanser's blood alcohol result of .122 grams per 100 milliliters on the exhibit and signed it. The exhibit indicates that the blood specimen was collected by "Jill M. Johnson, MT." We are satisfied that Gorecki's uncontested testimony, corroborated by the blood drawer's entry and signature on the exhibit, sufficiently authenticates that Lanser's blood sample was drawn by a qualified person as required by § 343.305(5)(b).
. In addition, the admission of Lanser's blood test results evidence is supported by case law. In State v. Disch, 119 Wis.2d 461, 470, 351 N.W.2d 492, 497 (1984), our supreme court held that a "blood test derived from a properly authenticated sample by legislative fiat is admissible." A blood analysis is judicially recognized as a scientific method, the result of which carries a prima facie presumption of accuracy. See id. at 473-74, 351 N.W.2d at 498-99. When a chemical test result is challenged on the basis of noncompliance with underlying procedures, the result nonetheless carries a "prima facie presumption of accuracy" and is admissible. See City of New Berlin v. Wertz, 105 Wis.2d 670, 674, 314 N.W.2d 911, 913 (Ct. App. 1981). Lanser's challenge goes to the weight of the blood alcohol evidence and not to its admissibility. See id. at 675 n.6, 314 N.W.2d at 913.
. In sum, we conclude that the trial court did not erroneously exercise its discretion in its evidentiary rulings during Fritsch's cross-examination. Further, we conclude that the evidence is sufficient to establish that a qualified person drew Lanser's blood sample for OWI evidentiary purposes, and that under the law established in Disch and Wertz, the trial court properly admitted Lanser's blood alcohol test results into evidence.
By the Court. -- Judgment affirmed.
This opinion will not be published. See Rule 809.23(1)(b)4, Stats. Stats.
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