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State v. Oltrogge1/13/2000
Marilyn L. Graves Clerk, Court of Appeals of Wisconsin
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 from a judgment of the circuit court for Dane County: SARAH B. O'BRIEN, Judge. Affirmed.
. Paula Oltrogge appeals a judgment convicting her of operating a motor vehicle while under the influence of an intoxicant (OMVWI). She presents three issues for review: (1) whether she is entitled to a new trial because her guilt was determined by a jury of only six persons; (2) whether the trial court erred when it excluded a blood alcohol concentration (BAC) "wheel" that Oltrogge offered into evidence; and (3) whether the court could consider Oltrogge's prior OMVWI conviction when revoking her operating privilege for refusing a breath test, even though the State had not introduced a certified record of her prior conviction at the refusal hearing.
. We conclude that: (1) because she failed to object to the six-person jury at or before trial, Oltrogge is not entitled to a new trial; (2) the trial court did not erroneously exercise its discretion when it excluded the BAC wheel from evidence; and (3) because the trial court never entered an order revoking Oltrogge's operating privilege for refusing the breath test, Oltrogge's final claim of error is moot. In sum, we reject all of Oltrogge's arguments and affirm the judgment of conviction.
BACKGROUND
. A Village of McFarland police officer arrested Oltrogge for OMVWI and transported her to the McFarland police station. After reading the contents of an "informing the accused" form to her, the officer asked Oltrogge to submit to a chemical test of her breath. The parties dispute what transpired next, but the net result was that the officer issued Oltrogge a notice of intent to revoke her operating privilege for refusing to submit to a breath test. At the refusal hearing, the officer testified that Oltrogge "stated [that] she would not submit to the breath test by stating no." Oltrogge, however, testified that after being asked to submit to chemical testing, she "hesitated for a minute ... collected thoughts, and ... said yes." Oltrogge also testified that the officer refused to allow her to take the test.
. After hearing the testimony, the trial court found the officer's account to be "far more plausible" and determined that Oltrogge had in fact refused to submit to chemical testing. The State then moved the court to revoke Oltrogge's operating privilege under Wis. Stat. § 343.305(10)(b) for a period of two years based on Oltrogge's refusal and a previous OMVWI conviction. Oltrogge objected on the grounds that the State had introduced no evidence of a prior OMVWI conviction. In response to the objection, the court stated that it would "give [the State] time to file a certified copy of the previous conviction" and would postpone imposing a two-year revocation until a certified copy of the conviction was filed with the court. The record, however, contains no revocation order based on Oltrogge's refusal to submit to a breath test.
. A jury trial was conducted two weeks after the refusal hearing. Prior to voir dire, the court informed the parties that the jury would be comprised of six members. When the court asked, " ny problem with that?" both parties answered "No."
. Oltrogge attempted during the trial to introduce a BAC "wheel" into evidence. The device is produced and distributed by the Department o
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