*1 State of Wisconsin, Plaintiff-Respondent-Petitioner,
v.
Dеfendant-Appellant.
Jonathan J. Hubbard,
Supreme Court
argument April
No. 2006AP2753-CR. Oral
July
—Decided
l *3 plaintiff-respondent-petitioner the For the cause was argued by attorney general, Becker, David J. assistant attorney Hollen, J.B. with whom on briefs was Van general. defendant-appellant there was a filed
For brief Firm, and The Jan- Steven W.Zaleski Zaleski Law argument by esville, and oral W Zaleski. Steven PROSSER, T. This is a of a DAVID J. review published appeals,1 decision of the court of which re- judgment versed and remanded the and orders of the County Wolfgram, Court, Circuit Thomas R. Ozaukee Judge. (Hubbard)
¶ 2. Defendant Jonathan J. Hubbard injury by jury was convicted trial of intoxicated use 940.25(l)(a).2 vehicle, of a During a violation of Wis. Stat. requested deliberations, clarification of a word or term the instructions. The had required been instructed that to convict Hubbard it was (1) beyond to find a reasonable doubt that: Hubbard *4 1 Hubbard, 356, App 2d State v. 2007 WI 306 Wis. N.W.2d893. 2All references to the Statutes are to the Wisconsin 2005-06 version unless otherwise indicated. (2) operation
operated vehicle; a Hubbard's the vehicle (3) great bodily harm; and Hubbard under сaused was prescription at he medication the time the influence of operated The that" the the court added 'under vehicle. ability the a influence' means that defendant's materially consumption impaired was because of vehicle part prescription This of the court's of a medication." 939.22(42). upon instruction based Wis. Stat. was copy ¶ 3. sent a of its instructions to the The court deliberating, jury jury the room verdict forms. After with Judge question: judge Wolfgram a "Couldthe define sent 'materially' impaired? Does that im- this mean he was paired enough not, an on outcome? If to have effect what?" circuit 4. We are asked to address whether the jury's responded request erred it to the
court when directing "give by jury all not clarification words jury ordinary their otherwise defined instructions meaning." the circuit court's The State asserts "materially response im- correct because the term was paired" peculiar meaning in the context crimi- has no re- law. contends that the circuit court's nal Hubbard "materially impaired" sponse has because was erroneous by meaning peculiar in the that was established law Waalen, 2d this court's decision State v. (1986). Judge asserts that Wolf- 386 N.W.2d47 Hubbard meaning gram instructed as to the should have phrases "materially impaired" using certain in the decision. Waalen response conclude the circuit court's We jury's request for clarification was not error.
to the "materially impaired" not have technical term does beyond peculiar in the time-tested law explanations instructions; therefore, in standard response error, was circuit court's *5 comported 990.01, Stat. and did not with Wis. consti- Accordingly, tute an erroneous exercise of discretion. we appeals. the court reverse
I. BACKGROUND January 27, 2005, 6. On Hubbard was involved utility sports in a car accident. Hubbard's Mitsubishi two Volkswagen pushed it off vehicle rear-ended a Jetta inju- highway a tree. The crash caused serious into nine-year-old girl passenger a in the ries to a who was injuries Volkswagen. head, her collar- She suffered arm, An the scene bone, and face. officer at described Hubbard as "disoriented" after the acсident. Hubbard pills prescription a told the officer he had taken 13 anxiety period medication called Xanax3 the 24-hour preceding the is accident. Xanax a controlled substance. 961.20(2)(a) (Alprazolam). Stat.
See Wis. January charged 31, 2005, On Hub- State injury by bard with one count of intoxicated use of a 940.25(l)(a). contrary vehicle, motor Ultimately, to Wis. Stat. 21,2006. trial was scheduled for March briefly parties ¶ 8. The addressed instruc- pretrial hearing January 17, tions at a on 2006. The generic prescription drug Xanax name brand Oral, WebMD, alprazolam. Drugs http:// and Treatments-Xanax www.webmd.com/drugs/drug-9824-Xanax+Oral.aspx?drugid=9 (last 2008). 824&drugname=Xanax+Oral visited June frequent alprazolam The most side effects of include lightheadedness. Physicians' Desk drowsiness Reference (62d 2007). overdosage alprazolam ed. "Manifestations of somnolence, confusion, coordination, impaired include dimin- reflexes, ished and coma." Id. at 3045. by pills
The record indicates that the 13 Xanax consumed period preceding in the 24-hour the accident exceeded Hubbard dosage prescribed his doctor. specific that "there isn't a instruction State indicated injury by operation dealing causing of a vehicle with sug- a controlled substance." It under the influence of *6 merging gested 12624 JI— JI —Criminal with Wis Wis instruction to the facts of 26645 to tailor an Criminal 4 bodily causing great with JI —Criminal 1262 deals Wis of an while under the influence operation harm of a vehicle 940.25(l)(a). § The instruc in violation of Wis. Stat. intoxicant intoxicant" follows: "under the influence of an as tion defines an means that the influence of intoxicant" ''Under materially impaired ability operate to a vehicle was defendant's beverage. consumption of an alcoholic because of beverages every person is who has consumed alcoholic Not must be "(cid:127)under the influence" as that term is used here. What person amount of established is that the has consumed sufficient person clear be less able to exercise the alcohol to cause to steady necessary judgment to handle and control a motor and hand vehicle. required impaired ability operate that to be demon- It is not driving. required by particular is that acts of unsafe What is strated materially ability safely person's the vehicle be to control impaired. omitted). (2004) (footnote 1262
Wis JI —Criminal operating a vehicle under Wis JI —Criminal 2664 deals with of Wis. Stat. the influence of a controlled substance violation 346.63(l)(a), suspensions, if "the total number of applies which 343.307(1) revocations, other convictions counted under s. and 346.65(2)(am)2. The 2." 10-year period, equals See within influence" as follows: instruction defines "under the ability that the defendant's "Under the influence" means operate impaired consumption of a a vehicle was because controlled substance. (name every person [Not who has consumed controlled sub- stance) here.] What is "under the influence" as that term is used has consumed a sufficient must be established is (name substance) person to to cause the be amount of controlled necessary steady judgment hand exercise the clear and less able to and a motor vehicle. to handle control the case. This suggestion with notes 1 corresponded (2004).6 7 оf comment to Wis JI —Criminal 1262 9. Hubbard's attorney the court to Wis pointed JI —Criminal 2600 While Intoxicated: Operating Intro (2004). Comment He ductory mentioned "materially required impaired ability It is not be demon- by particular driving. required strated acts of unsafe What is person's ability safely impaired. that the control the vehicle be (2004) (footnotes omitted). Wis JI —Criminal 2664 *7 substance, see Wis JI —Criminal 2664. For a model tailored to the substance, combined influence of an and a intoxicant controlled see Wis JI —Criminal 2664A. involving 7. The instruction is drafted for cases the influence of an intoxicant. For a model tailored to the influence of a controlled substance, see Wis JI —Criminal 2664. For a model tailored to the substance, combined influence of an intoxicant and a controlled see para- Wis JI —Criminal 2664A. The in definition the instruction 939.22(42): phrases provided the full definition "Under the influence of an intoxicant" means that the ability actor's a vehicle or handle a firearm airgun materially impaired because of his or her consumption beverage, of an alcohol of a controlled analog substance or controlled substance under ch. any beverage, combination of an alcohol con- analog, trolled substance and controlled substance or of any drug beverage any other or of an alcohol other drug. relating aFor discussion of issues to the definition of "under influence," Introductory Comment, the see Wis JI —Criminal Sec. VIII. I options "a lot of there were and noted impaired" rule The court did not in this court sense." for the think hearing. January at the instructions on jury trial, Hubbard's Prior to the opening in- that a jury the record stated on Judge Wolfgram re- held in chambers had been conference structions "under defining instruction over the garding dispute he was concluded Judge Wolfgram influence." the in the "materially" include word going because the influence" "under defining instructions Code. Nei- the Criminal under charged Hubbard was decision. to this objected nor Hubbard the State ther instructed in as part was At trial follows: 940.25(l)(a) of Wis- the Criminal Code
Section bodily harm great by who causes violated one consin is while under operation of a vehicle to another medication. prescription of a influence guilty of this find defendant you may Before by evidence which satis- offense, prove must the State following that the doubt you beyond a reasonable fies present. elements were three vehicle.... operated a
1. The defendant caused of a vehicle operation 2. The defendant's victim].... bodily [the harm to great of a influence under defendant was 3. The the defendant the time medication at prescription *8 vehicle. operated a defendant's means that the influence"
"Under the materially impaired a vehicle was ability operate to medication. prescription of a consumption because consumed Xanax every person who has Not that term is used influence" as is "under the alprazolam 9 here. person What must be established that is has quantity alprazolam consumed sufficient of Xanax or to person cause the to less to be able exercise the clear judgment steady necessary hand to handle and control a motor vehicle. is not required impaired ability
It to be by particular demonstrated driving. acts unsafe required person's ability What is is safely to materially impaired. control the vehicle is party objected ¶ 12. Neither to instructions, which were tendered to the with verdict forms for "guilty" guilty." and "not According 13. to record, the criminal court began
deliberations Shortly at 11:05 a.m. on March p.m., question after sent a written Judge Wolfgram, judge which stated: "Could the define 'materially' impaired? Does this mean that he was im- paired enough to have an on effect outcome? If not, what?" Following jury's question, Judge Wolf-
gram argument attorney heard from Hubbard's and the regarding respond. Initially Judge State how to Wolf- gram proposed using language from Waalen to define "materially impaired" jury. proposed term for the language, hereinafter referred to as "the Waalen lan- guage," was: impairment" 939.22(42),
"material Stats., under sec. incapable exists when a driving safely, or is proper without control of all ... those faculties neces- sary danger avoid to others. (citation
Waalen, quota- 2d at and internal omittеd). objected tion marks The State to the court using language respond jury's request this to the clarification. *9 jury's ques- Judge Wolfgram
¶ noted that the 15. quotation marks around the word "mate- tion included "materially impaired." rially," The circuit the term not sending jury of definitions court considered "material," "material," or of the word word variations Dictionary, Dictionary, from Black's Law Webster's Dictionary. Encarta Online arguments hearing
¶ from Hubbard's After 16. Wolfgram attorney Judge State, and the concluded that language" to the not be submitted "the should Waalen language" jury. did not He concluded that "the Waalen "materially impaired"; cited two ex- instead, it define amples material im- circumstances that constitute
of attorney, objection pairment. Over the Hubbard's Wolfgram printed Judge to the a note submitted give defined that read: "Please all words otherwise meaning." ordinary their instructions guilty at verdict 2:13 17. The returned receiving p.m., after the court's less than one hour response. April 2006, sentenced. 11, On Hubbard was sentencing, filed for a new Hubbard a motion
Prior to Wolfgram's arguing Judge response to the trial, partiеs jury's request was error. clarification immediately regarding presented argument the motion sentencing. that "the Waalen Hubbard maintained after impairment" language" and asserted defined "material introductory comment Wis JI —CRIMINAL that the language" should "the Waalen also indicates that Judge impairment." Wolf- be to define "material used gram orally denied Hubbard's motion. 2006, filed a sec- Hubbard 19. On October He filed a second motion
ond motion for new trial. prior to the first filed and determined because his was Judge Wolfgram judgment entry conviction. denying post-conviction entered an order Hubbard's motion for a on new trial October appealed judg- ¶ 20. Hubbard the circuit court's *10 denying ment and conviction its orders his motions appeals new for a trial. The court of determined that "materially impaired" "peculiar meaning has a in the charges" context of criminal Waalen clarified Hubbard, of the term. 306 2d 356, Wis. appeals ¶ 12. court of concluded that "the Waalen language" "materially impaired" defined and that the erroneously circuit court exercised its disсretion when jury it declined to instruct on the Waalen definition "materially impaired." appeals ¶ Id., 17. The court of reversed and remanded for a new trial in the interest of justice because it not was convinced the real contro- versy fully ¶ had been Id., tried. 20. petitioned
¶ 21. The State this review, court for granted January which we 22, on
II. STANDARDOF REVIEW ¶ 22. This case involves construction of the statu tory "materially impaired," term which was used a jury jury criminal instruction. We review instruction statutory issues involve the construction of terms de App Harmon, ¶ See novo. State v. 214, 8, 2006 WI 296 (citing 861, 2d Wis. 723 Neumann, N.W.2d732 State v. (Ct. 1993)). App. 687, 699, 179 2dWis. 508 54 N.W.2d deciding 23. A court has broad discretion in give particular jury whether to instruction. State v. Fonte, ¶ 9, 2005 77, WI 281 2d 654, Wis. 698 N.W.2d 594. The court's will determination not be reversed an absent erroneous exercise of discretion. State v. (Ct. App. Miller, 231 447, 464, 2d N.W.2d 567 1999); Morgan, 2d 195 Wis. State v. 1995). (Ct. App.
N.W.2d
III. ANALYSIS question narrow involves the 24. This case responded it to a court the circuit erred when whether jury jury's request used in clarification of a word "give instructing by all words instructions ordinary their in the instructions defined otherwise meaning." address whether are not asked to We provided were court instructions initial charged.7 party contends for the offense Neither correct were erroneous. that these instructions general prin- set some First, we will forth reinstructing jury. instructing Second, ciples about *11 Finally, in Waalen. discuss this court's decision we will response to court's circuit will evaluate whether we light jury's request clarification was erroneous for of Waalen. Principles
A. General
fully
purpose
a
instruction is to
26. "The
principle
fairly
or
of law
of a rule
and
applicable
inform the
particular
v.Am. Cont'l
to
case."Nommensen
a
132,
2d
N.W.2d
Co.,
14 rests in the of re-instruction of, extent and the form Hareng Blanke, v. 90 the court." discretion of sound (1979) (citing Seitz v. 166, N.W.2d437 158, 2d Wis. (1967); Seitz, 300, 151 N.W.2d86 Olson 2d 35 Wis. (1964)). Siordia, 279, 130 N.W.2d 25 Wis. 2d v. v. Waalen B. State in Waalen is central This court's decision appropriate
resolving us; therefore, it issue before proceeding analyze whether before to review Waalen jury's request response to the the circuit court's clarification was error. (Waalen) jury A. Waalen A convicted David operating under the influence a motor vehicle while
of 346.63(1)(a) § intoxicant, Wis. Stat. of an a violation of (1981-82) Waalen, Code. of the Motor Vehicle single The involved a issue: 2d at 19. Waalen case jury properly instructed the circuit court "whether regarding the influence.'" Id. at the definition of'under follows: instructed the as 20. The circuit court influence of an intoxicant" phrase "under recognized only easily the well-known covers any but also degrees conditions intoxication the, [are] which physical mental conditions abnormal or liquors, any degree intoxicating indulging result trials, governing reinstruc- procedure for includes a section civil 805.13(5) states: "Reinstruction. jury. of a Wisconsin Stat. tion as retires, may reinstruct to all the court After the may given, give or any previously part of the instructions appropriate." as it deems supplementary instructions 972.10, counterpart Code Stat. the Criminal Wisconsin govern- 805.13, specific provision not include a Wis. Stat. does ing jury. reinstruction *13 beer,
including deprive which tends to one of the clearness оf intellect and self control which one would possess. otherwise every person
Not who has consumed alcoholic beverages falls within the ban of the If statute. that consumption of beverages alcoholic does not cause the person to ordinary be influenced in the and well- term, understood person of the the is not under the of influence an intoxicant within the mean- ing the of statute. at 22. The
Id.
circuit court's instruction was based
on
1981
largely
the
version of the
standard
instruc
tion for
under
operating while
the influence
anof
intoxi
(1981).
cant,
Waalen,
Wis JI —Criminal 2663
130
2dWis.
at 22. The
was,
1981 standard
turn,
instruction
in
"virtually identical"
language
this court had previously
Hernandez,
in
endorsed
Fond du Lac v.
Wis. 2d
(1969).9 Waalen,
"Under influence" materially impaired ability to a vehicle is operate driver's beverage. alcoholic consumption of his an because every person who has consumed alcoholic bev- Not erages "under the influence" as that term is used here. is is has con- What must be established that to of alcohol to him be sumed a sufficient amount cause judgment to the clear and substantially less able exercise steady necessary hand to handle control motor vehicle. required ability impaired
It is not to be driving. acts of unsafe What particular demonstrated ability safely person's control required is that the impaired. materially, substantially, his vehicle be that is omitted). added) (footnote (emphasis at 21 Waalen's Id. jury proposed instruction instruction was the standard (1982). Waalen, in Wis JI —Criminal 2663 found 2d at argued the 1982 essence, In Waalen mandatory. jury He asserted standard instruction was in the Motor that the definition of "under the influence" align with the definition "under Vehicle Code should of an intoxicant" in the 1982 standard the influence Criminal at Wis. Stat. instruction, based on Code term, ordinary well of the he is under understood meaning the statute or of an within the influencе intoxicant particular case. ordinance in this 939.22(42). Waalen, 130 at short, Wis. 2d 23. In Waalen argued prove that to defendant was "under the influ- purposes ence" for Code, of the Motor Vehicle the state required person's consump- was to demonstrate that a "materially" "substantially" tion of alcohol affected his ability vehicle, his drive as indicated in the 1982 interpretation standard instruction's of "under the influence of an intoxicant" the Criminal Code. Id. at 23-24. rejected arguments.
¶ 34. This court Waalen's Id. expressly upheld at it First, 26-28. the circuit court's noting instruction, at id. that the instruction was almost identical the 1981 standard instruction and the one Hernandez. Id. at 28. The court concluded that the circuit court's instruction was "not inconsistent with the Criminal Code definition of 'under the influence.'" *15 Id. at 28. It also indicated that the circuit court's defini- tion of "under the influence"—"abnormal mental or physical deprive conditions ... which tends to one of the clearness of intellect and self control which one would possess" description otherwise an accurate of when —was a driver is "undеr the influence" a infer to that a "materially impaired" "incapable defendant was or of safely driving."10 Id. rejected part Second, 35. the Waalen court of the
1982 standard instruction and clarified the of impairment," holding impair- "material that "material impairment." ment" does not mean "substantial Id. at 27.11
10The Waalen court noted
the "incapable
safely
that
of
346.63(1)(a)
driving"
language was
added
to
Wis. Stat.
(1983-84),
the Motor
provision dealing
Vehicle Code
oper
with
intoxicant. State v.
ating a vehicle under
of an
influence
Waalen,
(1986).
27-28,
18,
130 Wis. 2d
"Material
of the
purpose
nition that
is inconsistent with
safety.
preface
statute,
highway
In the
which is to foster
Code,
legisla
of the Criminal
to the 1981 revisions
"provide
purpose
was to
expressly
ture
stated
its
safety
highways
of this
for all users of
maximum
oper
by persons who
from the harm threatened
state"
of
under the influence
an
ate motor vehiсles while
2051(13)(a)l
1981,
20,
ch.
Laws
secs.
intoxicant.
of
2051(13)(b)l.
Caibaiosai,
2d
See State v.
(1985).
Requiring "substantial
impairment" an individual's "under the person could be found vehicle before that expressed with the influence" would be inconsistent it maxi legislative provide intent would because highways. safety mum for all users state Waalen, at 27. 130 Wis. 2d Waalen gave examples court then two " 'material stating impair-
"material impairment," when exists 939.22(42), Stats., ment' under sec. safely, proper without driving is incapable necessary . . . avoid all those faculties control of added) (citation Id. at 27 (emphasis danger to others." omitted). This quoted marks quotation and internal Waalen central language language" —"the —is issue before us. *16 to eliminate a standard instruction had revised the 1981
tee the definitions of "under inconsistency between the perceived Id. and the Code. influence" in the Motor Vehicle Code Criminal so, Committee However, doing Jury the Instructions 26. at define "material" revised 1981 instruction to erred when it the Id. "substantial," authority at 27. citing no for revision. as State v. C. of Waalen Analysis and Application put Waalen decision in histori- 38. We must cal contеxt to give it proper David Waalen perspective. was involved an automobile accident or on about May 28, 1982. Id. at 20. The is date important because the circuit court and this court utilized the 1981-82 Wis- Id. consin Statutes in their analyses. 346.63(1) (2) In 1982 Wis. Stat.
(1981-82) part: read in (1)
Operating under influence of intoxicant. No person may drive or a motor vehicle while:
(a) Under of influence an intoxicant or a controlled substance or a of combination an intoxicant controlled substance . ..
(2)(a) any It person is unlawful injury to cause person by operation to another of a vehicle while: 1. Under the influence an intoxicant or a con- trolled or substance a combination of an intoxicant and a controlled substance. ... 940.25(1)(a) (1981-82) In 1982 Wis. Stat.
read: (1)
Injury Any intoxicated use of a vehicle. (a) following who does either of the par. under or (b) guilty E felony: a Class
(a) great bodily Causes harm to another human being by operation of a vehicle while under influence an or intoxicant a controlled substance combination of an intoxicant and a controlled substance. *17 939.22(42) (1981-82) § Stat. 41. In 1982 Wis. intoxicant" influence of an "under the the term defined as follows: in Criminal Code In defined. chs. 939 phrases Words and designated have the mean- following phrases words manifestly specific of a section ings unless the context construction: requires a different (42) means of an intoxicant" "Under the influence ability vehicle or handle a operate a that the actor's consump- materially because of his impaired firearm is beverage or controlled substance an alcohol tion of under ch. 161. statutory language there was no In 1982 42. defining influence." "under the VehicleCode
in the Motor statutory By for a definition contrast, there was phrase Wis. Stat. in the Criminal Code. See 939.22(42X1981-82). good § Thus, there was reason interpretation of the words to seek a uniform this court codes, and that meant in the two the influence" "under "materially impaired" embracing defi- from the term 939.22(42)(1981-82). § in Stat. nition Wis. understood, however, The court influence of an intoxicant" definition of "under 939.22(42) (1981-82) part § had of the been Stat. session of the since the 1955 Criminal Code Wisconsin legislature. In the 1955-56 Ch. Laws " 939.22(42) § the in- read: 'Under Statutes, Wisсonsin ability the actor's means that of an intoxicant' fluence materially firearm is a vehicle or handle consumption an impaired alcoholic his because of intoxicating drug beverage, sub- or other narcotic 939.22(42) (1955-56) (emphasis Wis. Stat. stance." added). 346.63(l)(a) Thus, Wis. Stat. and Wis. Stat. 939.22(42) had coexisted the statutes for three *18 Moreover, decades. the definition of "under the influence" 939.22(42) § upon [definition] was "based the tradi- tionally by example, See, used the courts this state. (1934); Bischel, v. 331, Devine 215 Wis. 335 Steinkrause (1920)." Eckstein, v. Legislative 170 487, 5 Wisconsin Judiciary Report Council, Committee on the (1953). Code, Criminal at 17 why confidently 44. This is the Waalen court endorsed the circuit instruction, court's as well as the in. Waalen, instruction Hernandez. See 130Wis. 2d at incompatibility inconsistency 26, 28. The court saw no or between the term "under the influence" in Wis. Stat. 346.63(1)(a)(1981-82) § phrase "materially and the im paired consumption of because his of an alcohol bever 939.22(42)(1981-82). age" § in Wis. Stat. However, the repudiate court was forced to the notion that "material impairment" impairment," sug meant "substantial as by gested Jury the Criminаl Instructions Committee, Waalen, appeared 130 Wis. 2d at because that notion purpose by raising to undermine the proof the of statute the requirement for "under the influence" and because language statutory legislative the had no basis in text or history. point 45. The Waalen court made the that the
Motor VehicleCode did not contain a definition of "under th[e] initially the influence" "at the time case was tried." recognized legislature Id. at 25. But the court that changed "degree" by had the statute to a in 1984 Waalen, Wis. Act 12. See 2d 130 Wis. at 27-28. 346.63(1)(a) (1981-82), Section amended Wis. Stat. so that the statute read: Operating under influence of or intoxicant other (1)
drug. person may No drive or a motor vehicle while:
(a) or a influence of an intoxicant Under of an intoxicant or a combination substance controlled substance, any under a controlled influence of her which renders him or degree drug other driving, or under combined incapable safely any drug to other an intoxicant influence of degree safely incapable her him or which renders driving;... added). 346.63(l)(a)(1983-84) (emphasis Wis. Stat. language the lan above is ¶ 46. The underscored change guage 459. This did not Act added 1983 Wis. existing language, modify is, or condition language intoxicant or a the influence an "under intoxicant a combination of an controlled substance Consequently, Waalen *19 and a controlled substance." implied that the it in 1986 when court was mistaken language degree him or her inca which renders "to a driving" provisions pable safely in sub modified all of 346.63(1)(1983-84). (a) § This Wis. Stat. section of drug" "any only language applied other or the com "any drug." of an intoxicant and other bination it correct when ¶ The Waalen court was " 939.22(42), impairment' under sec. wrote: 'material driving incapable person is of Stats., exists when safely, proper all those facul is control of or without danger necessary Waalen, avoid to others." ties . . . (citation added) (emphasis at 27 130 Wis. 2d omitted). phrases quotation are These marks internal examples. not if it the court correct used as But was safely driving" phrase "incapable implied of that the 346.63(1)(a) part of definition from Wis. Stat. Stat. intoxicant" in Wis. of an of "under the influence 939.22(42)(1983-84). acknowledge ¶ 48. We that 1995 Act 448 346.63(l)(a) both amended § Wis. Stat. and Wis. Stat. 939.22(42) 1996, but, view, in our these amend- analysis.12 ments do affect or alter this Building ¶ 49. on observations, these we turn to question response whether the circuit court's to the jury's request light for clarification was error of Waalen.
¶ 50. The State asserts that "the Waalen lan- guage" "peculiar" meaning did not ascribe a to the term "materially impaired" in the context of criminal charges; response thus the circuit court's to the acceptable was and did not constitute error. appeals counters, 51. Hubbard and the court of Judge Wolfgram's response jury's
held, that to the request provided for clarification should have "the (i.e., language" "incapable safely driving") Waalen because the Waalen court's discussion of "material im- pairment" "peculiar meaning created in the context of charges." Hubbard, criminal 306 Wis. 2d argues language Hubbard that this clarified the mean- ing "materially impaired" and that the circuit court jury accordingly. should have instructed the disagree. phrase degree 52. We "to a which incapable safely driving" rеnders him does not affect the definition of "under the influence" in the Criminal *20 adopted 1995 Wis. Act 448 the revised Uniform Con trolled Substances Act and made changes other in the statutes relating to controlled changes substances. These included add ing the phrase analog" "controlled substance to Wis. Stat. 939.22(42), 346.63 and Wis. multiple Stat. as well as other 448, §§ sections. 342, 1995 Wis. Act 445. These changes had no effect on application the limited "incapable of safely driving." acceded to Hubbard's court to have Code. For circuit request it rewritten would have for this "clarification" He was not entitled Hubbard's benefit. the statute for largesse. to such "materially give not court did 53. The Waalen meaning unique "peculiar"
impaired" a "technical" or language" Specifically, "the was law. Waalen criminal "materially statutory term define the not intended to language impaired." Instead, the used the Waalen court im- in material circumstances which to describe two pairment Waalen, 2d at 27. These 130 Wis. "exists." examples, Therefore, the Waalen not definitions. were impaired" defining "materially "the with court not was language." Waalen parts decision indicate Other of Waalen jury
acceptable for a circuit court instruct means regarding See id. "under the influence." definition of argued specific has not at 28. Hubbard by have court should endorsed the Waalen instructions given by court. These instructions the circuit been him because "the Waalen not have benefited would any specific part language" instruc- of the is not Id. 25-26 court. at endorsed Waalen tions (reciting and instruction in Waalen the circuit court's Hernandez). Consequently, given in the instruction language" argument de- "the Waalen Hubbard's give "materially impaired" "techni- the term a fined "peculiar" law in the context of criminal cal" or is untenable. Wolfgram Judge asked Thus, when footing 'materially' impaired," on he was solid
to define" 990.01(1), provides relying which on Wis. Stat. part: phrases pertinent be con- "All shall words usage"; approved according to common and strued erroneously he when his discretion he exercise did *21 jury "give directed the to all words not otherwise jury ordinary defined in the instructions their mean- ing." give The court would not have been correct to request.13 Hubbard's clarification ¶ 56. We note that the circuit court was also jury's request correct on the facts. The for clarification "materially," focused on the word not on the term "materially impaired." "materially" The adverb is a word likely crop up lawyer's vocabulary more to in a in than parlance, jury's probing question common and the very good about the word was a answer, one. The court's "give jury all words not otherwise defined in the ordinary meaning" instructions their sound, was re- sponsive, and did not constitute an erroneous exercise added.) (Emphasis of discretion.
¶ 57. The circuit court had discretion to deter-
necessity for,
mine the
of,
extent
and form of reinstruc-
jury
responding
request
tion of the
when
to its
for
(citations
Hareng,
clarification.
obligated
provide a
with information
*22
important
jury
to its
it is
decision."
the
believes
because
App
¶
Lombard,
52,
20, 271 Wis. 2d
v.
2004 WI
State
Judge Wolfgram
However, once
529,
¶ court of erred 58. We hold in Waalen it that this court's decision when determined "pecu- statutory "materially impairеd" gave term charges," Hub- criminal context of liar jury ¶ bard, and that the should 2dWis. accordingly. Thus, Id., been instructed have erroneously exercise its discretion court did not circuit request responded jury's for clarification it to the when by indicating jury "give all not that the should words their ordi- in the instructions otherwise defined may always nary meaning." answer This succinct presented. suffice, but it was correct on facts IV CONCLUSION response conclude that the circuit court's 59. We jury's request not error. The for clarification was to the "materially impaired" not have technical does term beyond peculiar meaning the time-tested in the law explanations instructions; therefore, in standard response error, to the was not the circuit court's comported 990.01, consti- and did not with Wis. Stat. Accordingly, an erroneous exercise of discretion. tute appeals. reverse the court of we By appeals the Court.—The decision of the court of is reversed. (concur-
¶ 60. ABRAHAMSON, SHIRLEY S. C.J. ring). In an effort to sustain the circuit court's errone- majority opinion adopts instruction, ous a self- contradiсtory approach and unworkable to Wis. Stat. 940.25(1), felony which makes it F a Class to cause great bodily operation harm another of a vehicle while under the influence of an intoxicant. Here are the essential facts: The State
charged § 940.25(1)(a), the defendant under Stat. provides person guilty felony which that a of a F Class great bodily "[clauses if he or she harm to another *23 being by operation human the of a vehicle while under added). (emphasis the an intoxicant" The influence of phrase "under the influence of an intoxicant" is defined separate provision, statutory 939.22(42), § in a Stat. " provides part '[u]nder which in relevant that the term the influence of an intoxicant' means that the actor's ability materially impaired to a vehicle... is consumption beverage because his or her an alcohol added). [or] (emphasis a controlled substance ..." The present meaning case focuses on the of the words "ma- 939.22(42). terially impaired" in Wis. Stat.
¶ 62. The circuit court's initial instructions to the jury helped clarify "materially" to the for purposеs of the In statute. its instructions, initial the part "[wlhat circuit court stated in must be estab- person lished is that the has consumed sufficient alprazolam person amount of Xanax or cause to the to judgment steady be less to able exercise the clear and necessary hand to handle and control a motor vehicle." largely The circuit court's instructions were based on (relating Jury Instruction No. 1262 Wisconsin Criminal 940.25(l)(a)), which the circuit court Wis. Stat. to Jury merged No. Criminal Instruction with Wisconsin 346.63(l)(a), (relating a Motor to Wis. Stat. provision).1 Code Vehicle deliberations, the In the of its course following question
posed to the court: circuit the "materially" judge impaired? Does this the define Could enough to effect on impaired he have an mean that was not, If what? outcome? jury's is As The confusion understandable. appeals "[g]iven the stated, the attention court of 'materially impaired' has from attracted
term legislature, commit- courts, the instruction with that a would also wrestle tee, it is no wonder actually it means."2 what must (stating "[w]hat JI —Criminal 1262 at See Wis sufficient person has consumеd a is that
be established to exercise of alcohol to be less able amount cause necessary handle and judgment steady hand clear vehicle."). a motor control in cases in is written be Wis JI —Criminal 1262 applied by the defendant allegedly consumed which the intoxicant "Xanax circuit instructions substitute court's alcohol. alprazolam" "alcohol." many of its court focused
During
argument,
oral
this
*24
to
circuit court's initial instructions
on whether the
questions
the
majority opinion
not address
The
does
the
were correct.
most
instruction was
counsel's confusion about what
court's and
majority
presented. The
for the fact situation
appropriate
footnote,
n.7,
reflect this
op.,
24
majority
does
opinion's
difficulty in
with this
grappling
issue.
court's
2
356,
240,
Hubbard,
2d
App
306 Wis.
State v.
2007 WI
29 responded jury's ¶ 65. The circuit court to the question by instructing give statutory to "materially ordinary impaired" meaning. term its jury's question circuit court answered the as follows: PLEASE ALL NOT GIVE WORDS DE- OTHERWISE IN THE FINED JURY INSTRUCTIONS THEIR OR- DINARYMEANING. problem: Although
¶ 66. Here is the the circuit reply jury may enough court's seem reasonable at glance, longstanding, first it conflicts with this court's precedentiаl interpretation "materially" of the word 939.22(42). Wis. Stat. ordinary meaning "materially"
¶ 67. The of "substantially."3 However, Waalen, in State v. 130 Wis. 2d (1986), expressly
386
2d
N.W. 47
this court
held that for
939.22(42),
purposes
"materially"
of Wis. Stat.
can
given
meaning
"substantially."4
not be
Be
ordinary meaning
"materially"
cause the
is "substan-
(1961)
Dictionary
See Webster's Third New Int'l
at 1392
(defining
"being
importance
"material" as
of real
great
SUBSTANTIAL.")
consequence:
(capitalization
original);
(3d
American Heritage Dictionary
English Language
ed.
1992)
(defining "materially"
at 1109
significant
"[t]o
mean
degree; substantially.").
extent or
Waalen,
18, 27,
State
See
v.
2dWis.
The Waalen court "materially" construed the word in light statutory of the purpose giving instead of ordinary the word its meaning as the circuit court instructed the do in present case. The Waalen court stated that" impair- '[m]aterial *25 "materially" tially," held that decision the Waalen "substantially" meaning given of be cannot 939.22(42), court's purposes the circuit Stat. of Wis. jury question reply thе Waalen contradicted interpretation of the statute. court's con- this court the dilemma Such is 69. is circuit court case: Either the in the instant fronts "materially" statutory be should term that the correct given "substantially") meaning ordinary or {i.e., its "materially" statutory term that the is correct Waalen "substantially." given The of cannot be right. be cannot both and Waalen circuit court opinion's majority answer Here is adopts majority opinion problem: each The to the contradictory interpretations "ma- of the word the two terially" 939.22(42). majority opinion The Stat. statutory holding that the court's the Waalen reaffirms "substantially."5 "materially" The mean cannot term majority opinion uphold goes the circuit on to then "materially" statutory term instruction that court's synonym ordinary meaning given as a its should be "substantially."6 interpreta- mangled majority opinion's 939.22(42) is a disservice Stat. tion of Wis. attorneys, defense courts, district circuit Wisconsin's Jury Commit- Instruction counsel, and the Wisconsin guidance rely upon on court for this tee, all of whom statutory interpretation. Section matters 939.22(42)'s of аn influence "under the definition of (which part provides is that a intoxicant" with inconsistent that is given a definition not be ment' should Waalen, 2d at 27. 130 Wis. ...." the statute purpose of 5 majority op., 35-36. ¶¶ See 6Majority op., 55-56. ¶¶
under the an influence of intoxicant when he she is "materially" impaired) incorporated many into stat- *26 example, causing See, utes. for statutes that criminalize death use firearm of vehicle or while under the sexually assaulting intoxicant,7 influence of an a victim causing who is under the influence of an intoxicant,8 great bodily by operation harm of a vehicle while under operating going intoxicant,9 influence an or of and armed with a firearm while under the .influence of an obligation intoxicant.10 This court has failed in its to provide phrase a clear and coherent sense of what the "materially impaired" means. my problem: Here is answer to the I
would stick with Waalen and hold that the circuit court erroneously response ques- instructed the its the'jury's tion. The circuit court could have answered question in a manner consistent with Waalen's inter- 939.22(42). § prеtation of Wis. Stat. example,
¶ 73. For the circuit court could have accepted suggestion language the defendant's to draw directly opinion, from the Waalen which states that person "materially" impaired purposes for of 939.22(42) § incapable driving when he or "is she of safely, proper or is without control of all those faculties necessary danger to avoid to others."11 Or the circuit repeated language court could have from its own in- reiterating "[w]hat structions, to the must be person established is that has consumed a sufficient 7 (c). 940.09(l)(a), (c); § (1g)(a), Wis. Stat. 8 940.225(2)(cm). § Wis. Stat. (c). 940.25(1)(a), Stat. 941.20(1)(b). Wis. Stat. 11 Waalen, at (quotation marks, ellipsis, 130 Wis. 2d omitted). citation alprazolam to cause the amount of Xanax judgment steady the clear be less able to exercise necessary handle and control a motor vehicle." hand my approach, view, Either would have been suffi- cient. conclude, however, I also the circuit harmless under the circum-
court's error was error present stances of the case. The Waalen court made "materially" рurposes clear that the 939.22(42) demanding pros- Wis. Stat. is less of the "substantially" ecution than the term which constitutes ordinary dictionary meaning "materially."12As explains ”[i]f court, the State in its brief to this the trial give direction to the in this case to court's 'materially 'ordinary impaired' meaning' words their *27 opened possibility jurors the door to the that some might higher guilt] [of impose a it threshold ... was prejudiced by possi- state, Hubbard, that was bility. complain Hubbard cannot about an instruction potentially that. . . made it harder for the state to convict him."13 forth, I in the 75. For the reasons set concur separately. write
court's mandate but I that Justices ANN am authorized state join BUTLER, and B. JR. WALSH BRADLEY LOUIS opinion. this join (concurring). I BUTLER, JR., LOUIS B. J. However, I
Chief Justice Abrahamson's concurrence. ("Requiring impairment' Id. 'substantial of an individual's ability a vehicle before that could be found expressed 'under the influence' would be inconsistent with safety legislative provide intent it would not because maximum highways."). for all users of state 13Reply Plaintiff-Respondent-Petitioner Brief of at 11. compelled separately am to write to make it clear that majority's opinion pre- should not be construed as sanctioning prosecution cedent for the criminal of an prescription individual who takes medication— designed medicine that is to maintain his or her health general prescribed dosage, only welfare—at its driving then find him or herself arrested for under the influence. purpose
¶ 78. The of the Uniform Controlled Sub- prevent drugs, Act stances is to abuse of not to create penalties properly new criminal for those who take prescription prescribed by physicians medicine as their in order to be more functional. See Wis. Stat. 961.001: legislature Declaration of intent. The that the finds abuse controlled substances constitutes a serious problem society. partial solution, As a these laws regulating controlled substances have been enacted penalties. legislature, with recognizing a need for among differentiation those who would violate these legislative laws makes this declaration of intent: (lg) Many of the controlled substances included chapter this legitimatе have medical and useful purposes necessary scientific and are to maintain the general health and people of this state. welfare added.) (Emphasis statutory language As this acknowl- edges, many drugs of those labeled as "controlled sub- prescribed very purpose helping stances" are for the *28 society, individuals function better and have benefi- purposes, making cial medicinal safer, it not more dangerous, both for those behind the wheel and those in paths. their prescription drug
¶ 79. The case at hand involves involving abuse a medication taken in excess of its prescribed dosage. majority points dangers out the resulting overdosage prescription drug from an of the impaired somnolence, Xanax, confusion, such as coor- Majority op., ¶ dination, and diminished reflexes. 6 n. majority correctly 3. The also observes that the defen- pills dant in this case took 13 Xanax the auto- before prescribed dosage accident, mobile which exceeded his drug. Id. for the involving
¶ 80. a an This is not case individual taking prescribed dоsage.1 a medication at its It is today's opin- clear, critical to make this distinction lest sending dangerous message ion be misread as a taking prescription individuals medications to disre- gard stop taking pre- their their doctor's orders and they right scribed medications if want to retain their thereby society. participating fully in drive and continue Prescription ¶ 81. medications serve critical role preservation safety in the of health and of individuals. long recognized only "[i]t This court has is not by drugs dispensed public desirable that the be to the competent persons peril skillful and to avert from nay, mistakes, desirable, it far occasional but more practically prompt essential, that medicines be within easy public." Evans, reach v. 130 Wis. State (1907). 381, 388, N.W recognize prescriptions warnings 1 I that some include clearly person taking specifying that a the medication should not an automobile of the effects the medication because person. Failing prescription's would have on the to follow the instructions, view, my potentially improper would be subject person prosecution. to criminal prescriptions warnings clearly indicating
Other include automobile, person operates that before a an should might have. This first determine what effects the medication opinion such does address situations. *29 already recognizes that "the ef 82. Our state prescription
fects of medication can form the basis of an involuntary Gardner, intoxication defense." State v. 230 (Ct. 1999); App. 32, 40, 2d see also Wis. 601 N.W.2d670 Wayne Scott, Jr., 1 R. LaFave & Austin W. Substantive (1986). 4.10(f), § Criminal Law at 560 Under the Model Code, self-induced is an Penal intoxication that is not incapable affirmative defense when it renders the actor criminality appreciating of Gardner, § of his or her conduct. 40; 2d at 230 Wis. see also Model Penal Code 2.08(4) (1962). An exclusion to the definition of "self- knowingly induced" exists when the actor intoxication body pursuant introduces into his or her substances Gardner, 41; medical advice. 2d at see also 2.08(5)(b); § Phillip Hassman, Model Penal Code E. Involuntary Deemed When Intoxication so as to Consti Charge, tute a to Criminal A.L.R.3d 195 7 Defense (1977). "involuntary Thus, the intoxication dеfense is prescription available the intoxication when was due Gardner, medication taken as directed." 230 Wis. 2d at legislature specifically Moreover, has adopted prescription a valid defense in OWI cases for methamphetamine, gamma— detectable amounts of hydroxybutyric 9—tetrahydrocannabinol acid, or delta— 346.63(l)(d).2 in a defendant's blood. Wis. Stat. It provides part: Stat. Wisconsin 346.63 relevant (1) may person No drive or a motor vehicle while: (am) has a detectable amount of a restricted controlled substance in his or her blood. (d) (am) par. In an action under that is based on the defendant allegedly having methamphetamine, a detectable amount of suggest legislature provide ludicrous to that the would prescription illegal a valid defense for these otherwise *30 substances, restricted controlled at the while same time refusing recognize prescription a valid defense for dispensed properly proper dosage. medicine taken at its improper reading today's opinion An legislaturе would contravene the intent of the in ad- dressing "controlled substances" within the Wisconsin majority Statutes. The statutes addressed the creat- ing penalties inappropriate criminal the for use and conjunc- abuse of controlled substances must be read in provisions tion with the Wis. Stat. 961.001 of quoted Uniform above, Controlled Substances Act with recognition involuntary our state's of an intoxication recognition defense, and with our state's of an OWI prescription involving defense in cases a detectable amount of a in restricted controlled substance a defendant's blood.
¶ 85. The Uniform Act re- Controlled Substances legislature's only veals the intent to criminalize that substances, behavior linked to the abuse of controlled involving and not to criminalize that behavior proper prescription use of must medicine. We not lose sight prescription of this essential distinction. If medi- type may cation is of the that assist healthily, functioning important more it to make sure is impede that our evaluations of OWI cases do not progress gained through to be the medication's use. acid, delta-9-tetrahydrocannabinol gamma-hydroxybutyric or blood, proves by
his or has a if he her the defendant defense or she preponderance of the evidence that at the time of the incident or prescription methamphet- occurrence he or she had a valid precursors, gamma-hydroxybutyric amine or one of its metabolic acid, delta-9-tetrahydroeannabinol. or added). (Emphasis it is legislature
Because clear intended those who abuse while not penalize drugs, extending criminal to those who take at its penalties proper medicine that under dosage properly prescribed of a pharmacist, legislative direction doctor not be undermined. purpose should foregoing reasons, 86. For I respectfully concur. Notes and 7 of the comment to Wis JI —Criminal 1262 (2004) read as follows: involving 1. This instruction is drafted for cases the influ- intoxicant, beverage ence of an which is defined to include "alcohol both,... any drug or controlled substance under ch. 961 or other 939.22(42) beverage any drug." or ... an alcohol other See note below. aFor model tailored to the influence aof controlled