COURT OF APPEALS

DECISION

DATED AND FILED

 

January 22, 2003

 

Cornelia G. Clark

Clerk of Court of Appeals

 

 

 

NOTICE

 

 

This opinion is subject to further editing.  If published, the official version will appear in the bound volume of the Official Reports. 

 

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.  See Wis. Stat. § 808.10 and Rule 809.62. 

 

 

 

 

Appeal No. 

02-2209

 

Cir. Ct. No.  01-CT-740

STATE OF WISCONSIN   

IN COURT OF APPEALS

 

DISTRICT III

 

 

 

 

State of Wisconsin,

 

                        Plaintiff-Respondent,

 

              v.

 

Mark A. Langenhuizen,

 

                        Defendant-Appellant.

 

 

 

            APPEAL from a judgment of the circuit court for Outagamie County:  harold v. froehlich, Judge.  Affirmed. 

1        PETERSON, J.[1]   Mark Langenhuizen appeals a judgment of conviction of operating a motor vehicle with a prohibited alcohol concentration. He claims the trial court erred by admitting blood test results because a laboratory assistant withdrew Langenhuizen’s blood in violation of Wis. Stat. § 343.305(5)(b).  We disagree and affirm.

BACKGROUND

2        In July 2001, Langenhuizen was arrested by Town of Freedom police officer Chris Nechodom for operating a motor vehicle while under the influence, second offense, and operating a motor vehicle with a prohibited blood alcohol concentration.  At the jury trial, Nechodom testified that he took Langenhuizen to the emergency room at Appleton Medical Center for a blood sample to be taken.  He witnessed the sample being taken and filled out the proper paperwork, including a Blood/Urine Analysis form.  He then took the box containing the blood sample to the post office.

3        Sharon Gilbertson, a laboratory assistant, took Langenhuizen’s blood.  She testified that she had taken the blood sample identified in the Blood/Urine Analysis form, which the State wanted to admit as an exhibit. She testified she took the blood using a kit provided by the State.  She took the tube of blood and sealed it multiple times.  This tube and a form were then put in the box given to Nechodom.

4        Langenhuizen objected to admission of the Blood/Urine Analysis form, arguing that the blood sample was taken 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. 

5        Langenhuizen contended that the laboratory assistant was not one of the people designated by the statute.  As a result, Langenhuizen maintained the State did not lay the proper foundation for admission of the blood sample.  The circuit court disagreed, however, finding that Gilbertson was acting under the direction of a physician because she was working in a hospital emergency room and drawing blood.  The court therefore admitted the State’s exhibit. 

6        Langenhuizen was found not guilty of operating a motor vehicle under the influence of an intoxicant, but was found guilty of operating a motor vehicle with a prohibited blood alcohol concentration.  He now appeals.

STANDARD OF REVIEW

7        We review a circuit court’s decision to admit evidence under a discretionary standard.  If the circuit court “examined the relevant facts; applied a proper standard of law; and using a demonstrative rational process, reached a conclusion that a reasonable judge could reach,” we affirm its decision.  State v. Sullivan, 216 Wis. 2d 768, 780-81, 576 N.W.2d 30 (1998).

DISCUSSION

8        Wisconsin Stat. § 343.305(5)(b) provides:

Blood may be withdrawn from the person arrested for violation … to determine the presence or quantity of alcohol, a controlled substance, a controlled substance analog or any other drug, or any combination of alcohol, controlled substance, controlled substance analog and any other drug in the blood only by a physician, registered nurse, medical technologist, physician assistant or person acting under the direction of a physician.  (Emphasis added.)

Langenhuizen renews his argument that Gilbertson does not fall within any of these categories.  He argues that the results of the blood test should thus be excluded because § 343.305(5)(d) provides that “the results of a test administered in accordance with this section are admissible on the issue of whether the person was under the influence of an intoxicant … or any issue relating to the person’s alcohol concentration.”  (Emphasis added.)

9        The record reveals the following about Gilbertson:

She is employed by Thedacare Labs at Appleton Medical Center;

She has been employed there for twelve years as a laboratory assistant;

Her duties include collecting blood samples;

She withdrew Langenhuizen’s blood in Nechodom’s presence; and

She used a State blood kit to withdraw the blood.

The reasonable inferences from the officer’s testimony are:  (1) Gilbertson worked at the hospital; (2) it was her job to withdraw blood; and (3) she was under the general supervision of the hospital in doing her job.

10      We can take judicial notice that:  (1) Appleton Medical Center is a reputable, well-regarded hospital in the community; and (2) hospital employees with medical responsibilities, such as patient care and the invasive taking of bodily fluids and tissues are under the general direction of at least one physician.  See Wis. Stat. § 902.01(2)(a), (6) (courts may take judicial notice of any fact “not subject to reasonable dispute” because it is “generally known within the territorial jurisdiction of the trial court”[;] “[J]udicial notice may be taken at any stage of the proceeding.”). 

11      Although the extent of the general supervision was not proven by testimony here, as it was in State v. Penzkofer, 184 Wis. 2d 262, 516 N.W.2d 774 (Ct. App. 1994), Penzkofer teaches that the “direction,” as that term is used in Wis. Stat. § 343.305(5)(b), need not be over-the-shoulder supervision.  Id. at 265-66. 

12      We conclude the trial court’s decision to admit the evidence was reasonably made based on a proper standard of law and in accordance with the facts of record.  See Sullivan, 216 Wis. 2d at 780-81.

            By the Court.—Judgment affirmed.

            This opinion will not be published.  See Wis. Stat. Rule 809.23(1)(b)4.

 

 


[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2).  All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.