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State v. Oltrogge1/13/2000
into evidence. In Hinz, we concluded that the trial court erred when it refused to admit a DOT blood alcohol chart used to train breath examination specialists, which the defendant had offered in an attempt to refute the results of his breathalyzer test. The trial court in Hinz determined that the blood alcohol chart was relevant to the defendant's case, but excluded the chart after determining that, without expert testimony to explain it, the chart's probative value was outweighed by the danger of confusion of the jury. See id. at 285. We concluded, however, that the blood alcohol chart, like a DOT stopping distance chart, was sufficiently reliable and straightforward to be admitted into evidence without expert testimony. See id at 286-88.
. We conclude that Oltrogge's reliance on Hinz is misplaced. The trial court here determined that the BAC wheel was not relevant to her defense, and was thus inadmissible for that reason. See Wis. Stat. § 904.02. In Hinz the trial court determined that the DOT blood alcohol chart was relevant to the defendant's case, but excluded it after weighing the chart's probative value against the danger of confusing the jury. See Wis. Stat. § 904.03. Our analysis in Hinz is thus of no assistance in our present review of the trial court's determination that the BAC wheel lacked relevance to Oltrogge's defense. As we have discussed, that determination was not an erroneous exercise of discretion.
. Finally, Oltrogge contends that the trial court erred in revoking her operating privilege for two years on the basis of her refusal to take the breath test and her prior conviction for OMVWI. Specifically, Oltrogge cites the State's failure to introduce proper evidence of the prior conviction at the time of the refusal hearing.
. If a court determines following a refusal hearing under Wis. Stat. § 343.305 (9) that the refusal was improper, the court must revoke the defendant's operating privilege "according to the number of previous suspensions, revocations or convictions." Section 343.305(10)(b). Under § 343.305(10)(b)3, "if the number of convictions, suspensions and revocations within a 10-year period equals 2, the court shall revoke the person's operating privilege for 2 years." Oltrogge argues that, at the time of her refusal hearing, there was no evidence in the record to support a two-year revocation instead of the one-year revocation applicable absent a prior OMVWI conviction.
. The difficulty with Oltrogge's claim of error, however, is that there is nothing in the record before us to indicate that the trial court ever entered a revocation order based on her refusal to take the breath test. In fact, the State acknowledges as much in its response brief, and requests that we "order the trial court to enter a two-year revocation for the refusal to run concurrent with the 28 month revocation" imposed upon Oltrogge's conviction for OMVWI. We decline to do so inasmuch as the State has not cross-appealed the trial court's failure to enter a revocation order on the refusal. By the same token, we can grant no relief to Oltrogge from an order that was not entered.
CONCLUSION
. For the reasons discussed above, we affirm the judgment of conviction.
By the Court. -- Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
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