COA rejects evidentiary challenges to OWI conviction.
Town of Geneva v. Terry Douglas Litts, II, 2025AP1039, 8/5/26, District II (ineligible for publication); case activity
The COA rejected the defendant’s evidentiary challenges and affirmed his convictions after a court trial for operating under the influence and operating with a prohibited alcohol concentration.
Terry Douglas Litts, II, was arrested for operating while intoxicated after a police officer responded to a motorcycle accident and encountered him standing near the motorcycle with a bloody face and smelling of alcohol. He consented to a blood draw at a nearby hospital, which was administered by a phlebotomist or medical technician and witnessed by the officer. Two vials of Litts’ blood were drawn and placed in a labeled and sealed blood kit, which the officer took to the police station and secured in an evidence locker. They remained in the locker until the chief of police or administrative assistant mailed them to the state hygiene laboratory. The laboratory measured Litts’ blood alcohol level at .224 and submitted a report to the police. Litts was then mailed a copy of the laboratory report and a citation for operating with a prohibited alcohol concentration. (¶¶2-4).
At his court trial in the Town of Geneva Municipal Court, the forensic scientist from the hygiene lab testified by telephone that the lab received a sealed and labeled container of Litts’ blood, that she opened the sealed container and confirmed it included two vials, and that the seals were over the labels — which was not standard procedure but the seal did not appear to have been tampered with. The municipal court found Litts guilty of operating with a prohibited alcohol concentration and operating a motor vehicle while under the influence. Litts’ convictions were affirmed by the circuit court after a transcript review. (¶¶ 5-8).
Litts argued in the court of appeals that the Town did not establish the chain of custody for his blood, there was no testimony the blood draw was performed by a qualified person, that he was denied his right to confrontation, and that telephonic testimony was improperly permitted. (¶ 10).
With respect to the chain of custody, the COA recognized that the persons who drew the blood sample and sent the sample to the laboratory did not testify. However, the officer testified that the person who drew the blood was a medical technician and or a phlebotomist and either the chief of police or administrative assistant mailed the samples to the lab, which was not hearsay because his testimony was based on his own knowledge of what he witnessed and the department’s protocol. (¶ 16). The COA also determined the municipal court did not clearly err by finding the laboratory technician’s testimony credible despite the seal placed over the label. The COA noted that the technician testified she did not observe any evidence that the samples had been tampered with and Litts did not present any evidence to contradict her testimony. (¶ 16-17).
The COA rejected Litts’ argument that there was no testimony that his blood was drawn by a qualified person. Wis. Stat. § 343.305(5)(b) authorizes blood draws to be performed by a “physician, registered nurse, medical technologist, physician assistant, phlebotomist, or other medical professional.” Although the person who drew Litts’ blood did not testify, the officer’s testimony that he witnessed the blood draw performed at a hospital by a medical technician or phlebotomist was sufficient to meet the criteria for admissibility under § 343.305(5)(b). (¶ 13).
Finally, the COA concluded the municipal court did not erroneously exercise its discretion when it allowed the lab technician to testify by telephone. See Wis. Stat. § 800.085 (establishing factors to assess whether to allow witness to appear telephonically). The COA considered that Litts was provided the technician’s written report and he did not cite any document on which the technician relied to which he did not have access. Litts also was able to cross-examine the technician about the seal protocol and her qualification for determining whether the samples were tampered with. The COA therefore concluded the technician’s telephone testimony did not impede Litts’ cross-examination or his right to confrontation. (¶ 21).