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State v. Dickey1/15/2003
. Sammy J. Dickey appeals from a judgment of conviction for operating a motor vehicle while intoxicated (OWI) contrary to Wis. Stat. § 346.63(1)(a) which was reinstated following a remand hearing. He argues that his rights were violated because he did not get an "adequate and meaningful" remand hearing given that the trial court did not consider the issues Dickey raised regarding "Double Jeopardy, confrontation, discovery violations, and the conflicting testimony given on remand as compared to what the jury was told." We disagree. The judgment is affirmed.
. On June 9, 2000, Dickey was stopped by City of Sheboygan Police Officer Jeffrey Metke after Metke observed Dickey driving recklessly. When Metke spoke with Dickey, Metke noted that Dickey's breath smelled of alcohol, his speech was slurred and his eyes were bloodshot and glassy; Metke also noticed a bottle of beer beneath the driver's seat. Metke administered a series of field sobriety tests, which Dickey failed. Dickey was then arrested for OWI.
. Metke asked Dickey to submit to a chemical test of his breath for intoxication. Dickey refused and Metke initiated a Notice of Intent to Revoke Operating Privileges. Dickey was then taken to a local hospital where a sample of his blood was forcibly drawn. Tests later performed by the Wisconsin State Laboratory of Hygiene demonstrated that Dickey's blood alcohol level was 0.226% by weight of alcohol in his blood. Dickey was subsequently charged with OWI and operating a motor vehicle with a prohibited alcohol concentration in his blood.
. On July 28, 2000, Dickey filed a motion to suppress the results of the blood test; he argued that neither Wisconsin's Implied Consent Law nor any other statute authorizes a forcible blood draw, and as a result of this lack of statutory authority, the blood test results should be suppressed. The trial court denied this motion.
. A jury trial was held on August 31, 2000. At the trial, medical technologist Brian Thill, who signed the blood/urine analysis form indicating that he had collected the blood sample, testified on direct examination that he had drawn the blood from Dickey. However, on cross-examination, Thill testified that he now remembered that he had not, in fact, taken the blood from Dickey. Thill testified that he had twice attempted to obtain a blood sample from Dickey but was unsuccessful, so he had a female "ER nurse" draw the blood.
. Dickey then objected to the introduction of the blood test results, arguing that a chain of custody issue had arisen because Thill was not the person who had actually drawn the blood. Dickey also argued that the blood draw was in violation of Wis. Stat. § 343.305(5)(b), which allows a blood draw only by a physician, registered nurse, medical technologist, physician assistant or person acting under the direction of a physician. Dickey argued that because it was unknown who exactly drew the blood, no evidence was presented demonstrating that the requirements of § 343.305(5)(b) had been met. The trial court overruled both objections, holding that there was no chain of custody issue nor any violation of § 343.305(5)(b) because Thill indicated that he had supervised the entire blood draw and the blood had been taken under his direction.
. After trial, Dickey was found guilty of both charges and a judgment of conviction was entered on September 11, 2000.
. Following Dickey's conviction, he renewed his challenges to the admissibility of the blood test results. This court rejected Dickey's argument that the trial court erred when it allowed blood test results to be admitted into evidence. However, we agreed with Dickey that no evidence was presented
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