State v. Penzkofer
| Decision Date | 26 April 1994 |
| Docket Number | No. 93-2800-CR,93-2800-CR |
| Citation | 516 N.W.2d 774,184 Wis.2d 262 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Gerald PENZKOFER, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Before CANE, P.J., and LaROCQUE and MYSE, JJ.
Gerald Penzkofer appeals a judgment of conviction for three counts of causing injury by intoxicated use of a vehicle. He claims that the trial court erred by admitting blood test results because the certified laboratory assistant withdrew Penzkofer's blood in violation of § 343.305(5)(b), STATS. This statute provides: "Blood may be withdrawn ... to determine the presence or quantity of alcohol ... only by a physician, registered nurse, medical technologist, physician's assistant or person acting under the direction of a physician." (Emphasis added Penzkofer argues that an act pursuant to a general authorization does not constitute an act "under the direction" of a physician. We conclude that the evidence establishes that the sample was withdrawn under the direction of a physician and affirm.
When construing a statute, the first resort is to the language of the statute itself. State v. Waalen, 130 Wis.2d 18, 24, 386 N.W.2d 47, 49 (1986). A statute must be interpreted on the basis of the plain meaning of its terms. State v. Williquette, 129 Wis.2d 239, 248, 385 N.W.2d 145, 149 (1986). The application of a statute to an undisputed set of facts presents a question of law that this court reviews without deference to the trial court. See Bucyrus-Erie Co. v. DILHR, 90 Wis.2d 408, 417, 280 N.W.2d 142, 146-47 (1979). Because the statute is not ambiguous and the hospital procedure met its requirements, Penzkofer's rights were not violated.
The facts are undisputed. Penzkofer was injured when the vehicle he was driving collided with another, and he was transported to Good Samaritan Hospital in Merrill. He was placed under arrest for OWI by a sheriff's deputy who observed him, and he agreed to submit to a blood test. A certified laboratory technician, Bonnie Noonan, withdrew a sample of Penzkofer's blood. Her duties include operation of chemistry instruments, drawing of patients' blood, bacteriology, urinalysis and blood banking. The hospital pathologist in charge at the time of the incident testified that Noonan performs these laboratory functions under his general supervision and direction. He identified a written hospital protocol setting forth the detailed procedures that must be followed by the technician. These procedures were reviewed, revised, and the protocol was dated and signed by the physician. The physician testified that he did not "stand over her shoulder" because "Then I might as well draw it myself ... or I'm busy with other work ... so I couldn't be two places at one time."
Penzkofer argues that the physician must give an express authorization for each occasion that blood is withdrawn. He refers to Webster's New World Dictionary 389 (3d ed.1988), which defines "di...
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State v. Kozel
...specific procedures that a physician and the person he or she directs must follow to meet that requirement. SeeState v. Penzkofer, 184 Wis.2d 262, 266, 516 N.W.2d 774 (Ct. App. 1994) ("[T]he legislature could have chosen to require the test to be taken by or taken in the presence of a physi......
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State v. Wallow, No. 2007AP2247-CR (Wis. App. 4/16/2008)
...involves applying the statute to the facts of record, presenting a question of law we review de novo. See State v. Penzkofer, 184 Wis. 2d 262, 264, 516 N.W.2d 774 (Ct. App. 1994). To the extent the trial court's decision involves findings of facts, we uphold those findings unless they are c......
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State v. Lund, 04-0543-CR.
...of a statute to the facts of record and, thus, presents a question of law that we decide de novo. State v. Penzkofer, 184 Wis. 2d 262, 264, 516 N.W.2d 774 (Ct. App. 1994). By the same token, whether the blood evidence was obtained in violation of the Fourth Amendment is a question of consti......
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State v. Hansen, No. 2008AP2904-CR (Wis. App. 5/6/2009), 2008AP2904-CR.
...required by the statute. This is a question of law that we review without deference to the trial court. See State v. Penzkofer, 184 Wis. 2d 262, 264, 516 N.W.2d 774 (Ct. App. 1994). ¶ 13 We conclude that the officer's testimony at trial and the Blood/Urine Analysis form sufficiently prove t......