State v. Jonathan J. Hubbard

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2008 WI 92 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2006AP2753-CR State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Jonathan J. Hubbard, Defendant-Appellant. REVIEW OF A DECISION OF THE COURT OF APPEALS 2007 WI App 240 Reported at: 306 Wis. 2d 356, 742 N.W.2d 893 (Ct. App. 2007-Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: July 15, 2008 April 10, 2008 Circuit Ozaukee Thomas R. Wolfgram ABRAHAMSON, C.J., concurs (opinion filed). BRADLEY and BUTLER, JR., JJ., join the concurrence. BUTLER, JR., J., concurs (opinion filed). DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the plaintiff-respondent-petitioner the cause was argued by David J. Becker, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general. For the defendant-appellant there was a brief filed by Steven W. Zaleski and The Zaleski Law Firm, Janesville, and oral argument by Steven W. Zaleski. 2008 WI 92 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2006AP2753-CR (L.C. No. 2005CF32) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent-Petitioner, JUL 15, 2008 v. Jonathan J. Hubbard, David R. Schanker Clerk of Supreme Court Defendant-Appellant. REVIEW of a decision of the Court of Appeals. ¶1 DAVID T. PROSSER, J. Reversed. This is a review of a published decision of the court of appeals,1 which reversed and remanded the judgment and orders of the Ozaukee County Circuit Court, Thomas R. Wolfgram, Judge. ¶2 Defendant Jonathan J. Hubbard (Hubbard) was convicted in a jury trial of injury by intoxicated use of a vehicle, a violation of Wis. Stat. § 940.25(1)(a).2 During deliberations, 1 State v. Hubbard, 2007 WI App 240, 306 Wis. 2d 356, 742 N.W.2d 893. 2 All references to the Wisconsin Statutes are to the 200506 version unless otherwise indicated. No. 2006AP2753-CR the jury requested clarification of a word or term in the jury instructions. The jury had been instructed that to convict Hubbard it was required to find beyond a reasonable doubt that: (1) Hubbard operated a vehicle; (2) Hubbard's operation of the vehicle caused great bodily harm; and (3) Hubbard was under the influence of prescription medication at the time he operated the vehicle. the The court added that "'under the influence' means that defendant's ability to operate a vehicle was materially impaired because of consumption of a prescription medication." This part of the court's instruction was based upon Wis. Stat. § 939.22(42). ¶3 The court sent a copy of its instructions to the jury room with verdict forms. After deliberating, the jury sent Judge Wolfgram a question: "Could the judge define 'materially' impaired? Does this mean that he was impaired enough to have an effect on outcome? ¶4 We If not, what?" are asked to address whether the circuit court erred when it responded to the jury's request for clarification by directing the jury to "give all words not otherwise defined in the jury instructions their ordinary meaning." State asserts that the circuit court's response was The correct because the term "materially impaired" has no peculiar meaning in the circuit context of court's criminal response law. was Hubbard erroneous contends because that the "materially impaired" has a peculiar meaning in the law that was established by this court's decision in State v. Waalen, 130 Wis. 2d 18, 386 N.W.2d 47 (1986). Hubbard asserts that Judge Wolfgram should 2 No. have instructed the jury as to the of meaning 2006AP2753-CR "materially impaired" by using certain phrases in the Waalen decision. ¶5 jury's We conclude that the circuit court's response to the request for clarification "materially impaired" does meaning the beyond in standard jury law not instructions; was have the not a error. technical time-tested therefore, the The or term peculiar explanations circuit in court's response to the jury was not error, comported with Wis. Stat. § 990.01, and discretion. did not constitute an erroneous exercise of Accordingly, we reverse the court of appeals. I. BACKGROUND ¶6 On January 27, 2005, Hubbard was involved in a two car accident. Hubbard's Mitsubishi sports utility vehicle rear- ended a Volkswagen Jetta and pushed it off the highway into a tree. The crash caused serious injuries to a nine-year-old girl who was a passenger in the Volkswagen. She suffered injuries to her head, collarbone, arm, and face. An officer at the scene described Hubbard as "disoriented" after the accident. Hubbard told the officer he had taken 13 pills of a prescription anxiety medication called Xanax3 in the 24-hour period preceding the 3 Xanax is a brand name for the generic prescription drug alprazolam. WebMD, Drugs and Treatments Xanax Oral, http://www.webmd.com/drugs/drug-9824Xanax+Oral.aspx?drugid=9824&drugname=Xanax+Oral (last visited June 30, 2008). The most frequent side effects of alprazolam include drowsiness and lightheadedness. Physicians' Desk Reference 3044 (62d ed. 2007). "Manifestations of alprazolam overdosage include somnolence, confusion, impaired coordination, diminished reflexes, and coma." Id. at 3045. 3 No. accident. Xanax is a controlled substance. 2006AP2753-CR See Wis. Stat. § 961.20(2)(a) (Alprazolam). ¶7 one On January 31, 2005, the State charged Hubbard with count of injury by intoxicated contrary to Wis. Stat. § 940.25(1)(a). use of a motor vehicle, Ultimately, a jury trial was scheduled for March 21, 2006. ¶8 The parties briefly addressed jury instructions at a pretrial hearing on January 17, 2006. The State indicated that "there isn't a specific instruction dealing with causing injury by operation of a vehicle under the influence of a controlled substance." It suggested merging Wis JI Criminal 12624 with Wis The record indicates that the 13 Xanax pills consumed by Hubbard in the 24-hour period preceding the accident exceeded the dosage prescribed by his doctor. 4 Wis JI Criminal 1262 deals with causing great bodily harm by operation of a vehicle while under the influence of an intoxicant in violation of Wis. Stat. § 940.25(1)(a). The instruction defines "under the influence of an intoxicant" as follows: "Under the influence of an intoxicant" means that the defendant's ability to operate a vehicle was materially impaired because of consumption of an alcoholic beverage. Not every person who has consumed alcoholic beverages is "under the influence" as that term is used here. What must be established is that the person has consumed a sufficient amount of alcohol to cause the person to be less able to exercise the clear judgment and steady hand necessary to handle and control a motor vehicle. It is not required that impaired ability to operate be demonstrated by particular acts of unsafe driving. What is required is that the person's 4 No. 2006AP2753-CR JI Criminal 26645 to tailor an instruction to the facts of the case. This suggestion corresponded with notes 1 and 7 of the comment to Wis JI Criminal 1262 (2004).6 ability to safely control the vehicle be materially impaired. Wis JI Criminal 1262 (2004) (footnote omitted). 5 Wis JI Criminal 2664 deals with operating a vehicle under the influence of a controlled substance in violation of Wis. Stat. § 346.63(1)(a), which applies if "the total number of suspensions, revocations, and other convictions counted under s. 343.307(1) within a 10-year period, equals 2." See § 346.65(2)(am)2. The instruction defines "under the influence" as follows: "Under the influence" means that the defendant's ability to operate a vehicle was impaired because of consumption of a controlled substance. [Not every person who has consumed (name controlled substance) is "under the influence" as that term is used here.] What must be established is that the person has consumed a sufficient amount of (name controlled substance) to cause the person to be less able to exercise the clear judgment and steady hand necessary to handle and control a motor vehicle. It is not required that impaired ability to operate be demonstrated by particular acts of unsafe driving. What is required is that the person's ability to safely control the vehicle be impaired. Wis JI Criminal 2664 (2004) (footnotes omitted). 6 Notes 1 and 7 of the comment to Wis JI Criminal 1262 (2004) read as follows: 1. This instruction is drafted for cases involving the influence of an intoxicant, which is defined to include "alcohol beverage or controlled substance under ch. 961 or both, . . . any other drug or . . . an alcohol beverage and any other drug." See § 939.22(42) in note 7, below. For a model tailored to the influence of a controlled substance, see Wis 5 No. ¶9 Hubbard's attorney pointed the court 2006AP2753-CR to Wis JI Criminal 2600 Operating While Intoxicated: Introductory Comment (2004). He mentioned "materially impaired" and noted that there were "a lot of options I think for the court in this sense." The court did not rule on jury instructions at the January 17 hearing. ¶10 Wolfgram Prior to the opening of Hubbard's jury trial, Judge stated on the record that a jury instructions conference had been held in chambers regarding a dispute over JI Criminal 2664. For a model tailored to the combined influence of an intoxicant and a controlled substance, see Wis JI Criminal 2664A. . . . . 7. The instruction is drafted for cases involving 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 combined influence of an intoxicant and a controlled substance, see Wis JI Criminal 2664A. The definition in the instruction paraphrases the full definition provided in § 939.22(42): "Under the influence of an intoxicant" means that the actor's ability to operate a vehicle or handle a firearm or airgun is materially impaired because of his or her consumption of an alcohol beverage, of a controlled substance or controlled substance analog under ch. 961, of any combination of an alcohol beverage, controlled substance and controlled substance analog, or of any other drug or of an alcohol beverage and any other drug. For a discussion of issues relating to the definition of "under the influence," see Wis JI Criminal 2600 Introductory Comment, Sec. VIII. 6 No. the instruction defining "under the influence." 2006AP2753-CR Judge Wolfgram concluded that he was going to include the word "materially" in the jury instructions in defining "under the influence" because Hubbard was charged under the Criminal Code. Neither the State nor Hubbard objected to this decision. ¶11 At trial the jury was instructed in part as follows: Section 940.25(1)(a) of the Criminal Code of Wisconsin is violated by one who causes great bodily harm to another by the operation of a vehicle while under the influence of a prescription medication. Before you may find the defendant guilty of this offense, the State must prove by evidence which satisfies you beyond a reasonable doubt that the following three elements were present. 1. The defendant operated a vehicle. . . . 2. The defendant's operation of a vehicle caused great bodily harm to [the victim]. . . . 3. The defendant was under the influence of a prescription medication at the time the defendant operated a vehicle. "Under the influence" means that the defendant's ability to operate a vehicle was materially impaired because of consumption of a prescription medication. Not every person who has consumed Xanax or alprazolam is "under the influence" as that term is used here. What must be established is that the person has consumed a sufficient quantity of Xanax or alprazolam to cause the person to be less able to exercise the clear judgment and steady hand necessary to handle and control a motor vehicle. It is not required that impaired ability to operate be demonstrated by particular acts of unsafe driving. What is required is that the person's ability to safely control the vehicle is materially impaired. 7 No. ¶12 2006AP2753-CR Neither party objected to the instructions, which were tendered to the jury with verdict forms for "guilty" and "not guilty." ¶13 According to the criminal court record, deliberations began at 11:05 a.m. on March 23, 2006. after 1 p.m., the jury stated: sent a judge define to Judge which impaired? Does this mean that he was impaired enough to have an ¶14 the question Shortly Wolfgram, effect on outcome? "Could written jury 'materially' If not, what?" Following the jury's question, Judge Wolfgram heard argument from Hubbard's attorney and the State regarding how to respond. Initially Judge Wolfgram proposed using language from Waalen to define the term "materially impaired" for the jury. The proposed language, hereinafter referred to as "the Waalen language," was: "material impairment" under sec. 939.22(42), Stats., exists when a person is incapable of driving safely, or is without proper control of all those faculties . . . necessary to avoid danger to others. Waalen, 130 Wis. 2d at 27 (citation and internal quotation marks omitted). The State objected to the court using this language to respond to the jury's request for clarification. ¶15 quotation Judge Wolfgram noted that the jury's question included marks around "materially impaired." the word "materially," not the term The circuit court considered sending the jury definitions of the word "material," or variations of the word "material," from Black's Law Dictionary, and Encarta Online Dictionary. 8 Dictionary, Webster's No. ¶16 After hearing arguments from Hubbard's 2006AP2753-CR attorney and the State, Judge Wolfgram concluded that "the Waalen language" should not be submitted to the jury. He concluded that "the Waalen language" did not define "materially impaired"; instead, it cited two examples of circumstances that constitute material impairment. Over the objection of Hubbard's attorney, Judge Wolfgram submitted a printed note to the jury that read: "Please give all words not otherwise defined in the jury instructions their ordinary meaning." ¶17 The jury returned a guilty verdict at 2:13 p.m., less than one hour after receiving the court's response. ¶18 On April 11, 2006, Hubbard was sentenced. Prior to sentencing, Hubbard filed a motion for a new trial, arguing that Judge Wolfgram's response clarification was regarding motion the maintained that to error. The the jury's parties for presented argument sentencing. Hubbard immediately after Waalen language" "the request defined "material impairment" and asserted that the introductory comment to Wis JI CRIMINAL 2600 also indicates that "the Waalen should be used to define "material impairment." language" Judge Wolfgram orally denied Hubbard's motion. ¶19 On October 11, 2006, Hubbard filed a second motion for a new trial. filed and conviction. He filed a second motion because his first was determined prior to the entry of the judgment of Judge Wolfgram entered an order denying Hubbard's post-conviction motion for a new trial on October 19, 2006. 9 No. ¶20 Hubbard appealed the circuit court's 2006AP2753-CR judgment of conviction and its orders denying his motions for a new trial. The court of appeals determined that "materially impaired" has a "peculiar meaning in the context of criminal charges" and that Waalen clarified Wis. 2d 356, ¶12. Waalen language" circuit court declined to the meaning The court defined "materially impaired." of the the exercised jury term. appeals "materially erroneously instruct of on Id., ¶17. Hubbard, concluded impaired" its the and discretion Waalen 306 that "the that the when it definition of The court of appeals reversed and remanded for a new trial in the interest of justice because it was not convinced the real controversy had been fully tried. Id., ¶20. ¶21 The State petitioned this court for review, which we granted on January 22, 2008. II. STANDARD OF REVIEW ¶22 This case involves construction of the statutory term "materially instruction. impaired," which was used in a criminal jury We review jury instruction issues that involve the construction of statutory terms de novo. See State v. Harmon, 2006 WI App 214, ¶8, 296 Wis. 2d 861, 723 N.W.2d 732 (citing State v. Neumann, 179 Wis. 2d 687, 699, 508 N.W.2d 54 (Ct. App. 1993)). ¶23 A court has broad discretion in deciding whether to give a particular jury instruction. ¶9, 281 Wis. 2d 654, 698 N.W.2d 594. State v. Fonte, 2005 WI 77, The court's determination will not be reversed absent an erroneous exercise of discretion. 10 No. 2006AP2753-CR State v. Miller, 231 Wis. 2d 447, 464, 605 N.W.2d 567 (Ct. App. 1999); State v. Morgan, 195 Wis. 2d 388, 448, 536 N.W.2d 425 (Ct. App. 1995). III. ANALYSIS ¶24 This case involves the narrow question whether the circuit court erred when it responded to a jury's request for clarification of a word used in jury instructions by instructing the jury to "give all words not otherwise defined in the jury instructions their ordinary meaning." We are not asked to address whether the initial jury instructions provided by the court were correct for the charged.7 offense Neither party contends that these instructions were erroneous. ¶25 First, we will set forth some general principles about instructing and reinstructing a jury. this court's decision in Waalen. Second, we will discuss Finally, we will evaluate whether the circuit court's response to the jury's request for clarification was erroneous in light of Waalen. A. General Principles ¶26 "The purpose of a jury instruction is to fully and fairly inform the jury of a rule or principle of law applicable to a particular case." Nommensen v. Am. Cont'l Ins. Co., 2001 WI 112, ¶36, 246 Wis. 2d 132, 629 N.W.2d 301 (citing Grube v. Daun, 213 Wis. 2d 533, 549, 570 N.W.2d 851 (1997); Nowatske v. Osterloh, 198 Wis. 2d 419, 428, 543 N.W.2d 265 (1996)). 7 The Hubbard acknowledges, as did the court of appeals, that "the standard instructions given by the trial court were arguably legally sufficient." Hubbard, 306 Wis. 2d 356, ¶10. 11 No. objective of "an instruction is not only to 2006AP2753-CR state the law accurately but also to explain what the law means to persons who usually do not possess law degrees." Id. (citation and internal quotation marks omitted). ¶27 "Jury instructions are not to be judged in artificial isolation, but must be viewed in the context of the overall charge." State v. Pettit, 171 Wis. 2d 627, 637-38, 492 N.W.2d 633 (Ct. App. 1992) (citing Mullaney v. Wilbur, 421 U.S. 684, 704-05 (1975) (Rehnquist, J., concurring); Barrera v. State, 109 Wis. 2d 324, 330-31, 325 N.W.2d 722 (1982); State v. Reynosa, 108 Wis. 2d 499, 510, 322 N.W.2d 504 (Ct. App. 1982)). "If the overall meaning communicated by the instructions was a correct statement of the law, no grounds for reversal exist." Fischer v. Ganju, 168 Wis. 2d 834, 850, 485 N.W.2d 10 (1992) (citing White v. Leeder, 149 Wis. 2d 948, 954-55, 440 N.W.2d 557 (1989); State v. Paulson, 106 Wis. 2d 96, 108, 315 N.W.2d 350 (1982)). ¶28 whether "A to circuit give a court has requested broad jury discretion instruction." in deciding State v. Coleman, 206 Wis. 2d 199, 212, 556 N.W.2d 701 (1996) (citing State v. Vick, 104 Wis. 2d 678, 690, 312 N.W.2d 489 (1981)). "'The decision to give or not to give a requested jury instruction lies within the trial court's discretion' and will not be reversed absent an erroneous exercise of discretion." Arents v. ANR Pipeline Co., 2005 WI App 61, ¶42, 281 Wis. 2d 173, 696 N.W.2d 194 (quoting Miller, 231 Wis. 2d at 464). 12 No. ¶29 court's This case involves reinstruction of a a question jury clarification during deliberations.8 regarding after a 2006AP2753-CR a circuit request for "The necessity for, the extent of, and the form of re-instruction rests in the sound discretion of the court." Hareng v. Blanke, 90 Wis. 2d 158, 166, 279 N.W.2d 437 (1979) (citing Seitz v. Seitz, 35 Wis. 2d 282, 300, 151 N.W.2d 86 (1967); Olson v. Siordia, 25 Wis. 2d 274, 279, 130 N.W.2d 827 (1964)). B. State v. Waalen ¶30 This court's decision in Waalen is central to resolving the issue before us; therefore, it is appropriate to review Waalen before proceeding to analyze whether the circuit court's response to the jury's request for clarification was error. ¶31 A jury convicted David A. Waalen (Waalen) of operating a motor vehicle while under the influence of an intoxicant, a violation of Wis. Stat. § 346.63(1)(a) (1981-82) of the Motor Vehicle Code. Waalen, 130 Wis. 2d at 19. The Waalen case involved a single issue: "whether the circuit court properly 8 Chapter 805 of the Wisconsin Statutes, which addresses civil procedure for trials, includes a section governing reinstruction of a jury. Wisconsin Stat. § 805.13(5) states: "Reinstruction. After the jury retires, the court may reinstruct the jury as to all or any part of the instructions previously given, or may give supplementary instructions as it deems appropriate." Wisconsin Stat. § 972.10, the Criminal Code counterpart to Wis. Stat. § 805.13, does not include a specific provision governing reinstruction of a jury. 13 No. instructed the influence.'" jury regarding Id. at 20. the definition 2006AP2753-CR of 'under the The circuit court instructed the jury as follows: The phrase "under the influence of an intoxicant" covers not only the well-known and easily recognized conditions and degrees of intoxication but also any abnormal mental or physical conditions which [are] the result of indulging in any degree in intoxicating liquors, including beer, which tends to deprive one of the clearness of intellect and self control which one would otherwise possess. Not every person who has consumed alcoholic beverages falls within the ban of the statute. If that consumption of alcoholic beverages does not cause the person to be influenced in the ordinary and wellunderstood meaning of the term, the person is not under the influence of an intoxicant within the meaning of the statute. Id. at 22. The circuit court's instruction was based largely on the 1981 version of the standard jury instruction for operating while under the influence of an intoxicant, Wis JI Criminal 2663 (1981). Waalen, 130 Wis. 2d at 22. The 1981 standard instruction was, in turn, "virtually identical" to language this court had previously endorsed in Fond du Lac v. Hernandez, 42 Wis. 2d 473, 167 N.W.2d 408 (1969).9 Waalen, 130 Wis. 2d at 26. 9 The jury instruction for "under the influence of an intoxicant" that this court endorsed in Fond du Lac v. Hernandez, 42 Wis. 2d 473, 475-76, 167 N.W.2d 408 (1969), was: The expression "under the influence of an intoxicant" covers not only all the well-known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in intoxicating liquors, including beer, and which tends to deprive him of that clearness of 14 No. ¶32 Waalen contended that the circuit 2006AP2753-CR court erred in instructing the jury because its instruction describing "under the influence" differed from language used to define the term in the 1982 standard jury instruction as well as the definition found in Wis. Stat. § 939.22(42) of the Criminal Code. 130 Wis. 2d at 20. Waalen, He asserted that the following instruction should have been given: "Under the influence" of an intoxicant means that a driver's ability to operate a vehicle is materially impaired because of his consumption of an alcoholic beverage. Not every person who has consumed alcoholic beverages is "under the influence" as that term is used here. What must be established is that the person has consumed a sufficient amount of alcohol to cause him to be substantially less able to exercise the clear judgment and steady hand necessary to handle and control a motor vehicle. intellect and control otherwise possess. of A himself which he would person who is even to the slightest extent under the influence of an intoxicant in the common and well-understood acceptation of the term is to some degree at least less able either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle as powerful and dangerous a mechanism as a modern motor vehicle with safety to himself and the public. Not every man who has consumed alcoholic beverages falls within the ban of the statute. If that consumption of alcoholic beverages does not cause him to be influenced in the ordinary and well understood meaning of the term, he is not under the influence of an intoxicant within the meaning of the statute or ordinance in this particular case. 15 No. 2006AP2753-CR It is not required that impaired ability to operate be demonstrated by particular acts of unsafe driving. What is required is that the person's ability to safely control his vehicle be materially, that is substantially, impaired. Id. at 21 (emphasis added) (footnote omitted). Waalen's proposed jury instruction was the standard instruction found in Wis JI Criminal 2663 (1982). ¶33 Waalen, 130 Wis. 2d at 21. In essence, Waalen argued that the 1982 standard jury instruction was mandatory. He asserted that the definition of "under the influence" in the Motor Vehicle Code should align with the definition of "under the influence of an intoxicant" in the 1982 standard jury instruction, based on the Criminal Code at Wis. Stat. § 939.22(42). Waalen, 130 Wis. 2d at 23. In short, Waalen argued that to prove a defendant was "under the influence" for purposes of the Motor Vehicle Code, the state was required to demonstrate that a person's consumption of alcohol "materially" or "substantially" affected his ability to drive his vehicle, instruction's as indicated interpretation in of intoxicant" in the Criminal Code. ¶34 the "under 1982 the standard influence jury of an Id. at 23-24. This court rejected Waalen's arguments. Id. at 26-28. First, it expressly upheld the circuit court's jury instruction, id. at 28, noting that the instruction was almost identical to the 1981 standard instruction and the one in Hernandez. 26, 28. The instruction court was "not concluded inconsistent that with definition of 'under the influence.'" indicated that the circuit court's 16 the circuit the court's Criminal Id. at 28. definition Id. at of Code It also "under the No. 2006AP2753-CR influence" "abnormal mental or physical conditions . . . which tends to deprive one of the clearness of intellect and self control which one would otherwise possess" was an accurate description of when a driver is "under the influence" for a jury to infer that a defendant "incapable of safely driving."10 ¶35 standard was "materially impaired" or Id. Second, the Waalen court rejected part of the 1982 instruction and clarified the meaning of "material impairment," holding that "material impairment" does not mean "substantial impairment." ¶36 Id. at 27.11 The Waalen court explained why "material impairment" and "substantial impairment" are incompatible: "Material impairment" should not be given a definition that is inconsistent with the purpose of the statute, which is to foster highway safety. In the preface to the 1981 revisions of the Criminal Code, the legislature expressly stated that its purpose was to "provide maximum safety for all users of the highways of this state" from the harm threatened by persons who operate motor vehicles while under the influence of an intoxicant. Laws of 1981, 10 The Waalen court noted that the "incapable of safely driving" language was added to Wis. Stat. § 346.63(1)(a) (198384), the Motor Vehicle Code provision dealing with operating a vehicle under the influence of an intoxicant. State v. Waalen, 130 Wis. 2d 18, 27-28, 386 N.W.2d 47 (1986). 11 The court indicated that the Jury Instructions Committee had revised the 1981 standard instruction to eliminate a perceived inconsistency between the definitions of "under the influence" in the Motor Vehicle Code and the Criminal Code. Id. at 26. However, in doing so, the Jury Instructions Committee erred when it revised the 1981 instruction to define "material" as "substantial," citing no authority for the revision. Id. at 27. 17 No. 2006AP2753-CR ch. 20, secs. 2051(13)(a)1 and 2051(13)(b)1. See State v. Caibaiosai, 122 Wis. 2d 587, 591, 363 N.W.2d 574 (1985). Requiring "substantial impairment" of an individual's ability to operate a vehicle before that person could be found "under the influence" would be inconsistent with the expressed legislative intent because it would not provide maximum safety for all users of state highways. Waalen, 130 Wis. 2d at 27. ¶37 The Waalen court then gave two examples of "material impairment," stating that "'material impairment' under sec. 939.22(42), Stats., exists when a person is incapable of driving safely, or is without proper control of all faculties . . . necessary to avoid danger to others." (emphasis added) omitted). This (citation quoted and internal language "the Id. at 27 quotation Waalen those marks language" is central to the issue before us. C. Analysis and Application of State v. Waalen ¶38 We must put the Waalen decision in historical context to give it proper perspective. David Waalen was involved in an automobile accident on or about May 28, 1982. Id. at 20. date and is important because the circuit court this utilized the 1981-82 Wisconsin Statutes in their analyses. ¶39 The court Id. In 1982 Wis. Stat. § 346.63(1) and (2) (1981-82) read in part: Operating under influence of intoxicant. (1) No person may drive or operate a motor vehicle while: (a) Under the influence of an intoxicant or a controlled substance or a combination of an intoxicant and a controlled substance . . . . . . . 18 No. 2006AP2753-CR (2)(a) It is unlawful for any person to cause injury to another person by the operation of a vehicle while: 1. Under the influence of an intoxicant or a controlled substance or a combination of an intoxicant and a controlled substance. . . . ¶40 In 1982 Wis. Stat. § 940.25(1)(a) (1981-82) read: Injury by intoxicated use of a vehicle. (1) Any person who does either of the following under par. (a) or (b) is guilty of a Class E felony: (a) Causes great bodily harm to another human being by the operation of a vehicle while under the influence of an intoxicant or a controlled substance or a combination of an intoxicant and a controlled substance. ¶41 In 1982 Wis. Stat. § 939.22(42) (1981-82) defined the term "under the influence of an intoxicant" in the Criminal Code as follows: Words and phrases defined. In chs. 939 to 948, the following words and phrases have the designated meanings unless the context of a specific section manifestly requires a different construction: . . . . (42) "Under the influence of an intoxicant" means that the actor's ability to operate a vehicle or handle a firearm is materially impaired because of his consumption of an alcohol beverage or controlled substance under ch. 161. ¶42 In 1982 there was no statutory language in the Motor Vehicle Code defining "under the influence." By contrast, there was a statutory definition for that phrase in the Criminal Code. See Wis. Stat. § 939.22(42)(1981-82). Thus, there was good reason for this court to seek a uniform interpretation of the words "under the influence" in the two codes, and that meant 19 No. 2006AP2753-CR embracing the term "materially impaired" from the definition in Wis. Stat. § 939.22(42)(1981-82). ¶43 "under The court understood, however, that the definition of the influence of an intoxicant" in Wis. Stat. § 939.22(42) (1981-82) had been part of the Wisconsin Criminal Code since the 1955 session of the legislature. of 1955. Ch. 696, Laws In the 1955-56 Wisconsin Statutes, § 939.22(42) read: "'Under the influence of an intoxicant' means that the actor's ability to operate a vehicle or handle a firearm is materially impaired because of his consumption of an alcoholic beverage, a narcotic drug § 939.22(42) or other (1955-56) intoxicating (emphasis substance." added). Wis. Wis. Thus, Stat. Stat. § 346.63(1)(a) and Wis. Stat. § 939.22(42) had coexisted in the statutes for three decades. Moreover, the definition of "under the influence" in § 939.22(42) was "based upon the [definition] traditionally example, used Devine by v. the courts Bischel, in 215 this Wis. state. 331, See, 335 Steinkrause v. Eckstein, 170 Wis. 487, 491 (1920)." for (1934); 5 Wisconsin Legislative Council, Judiciary Committee Report on the Criminal Code, at 17 (1953). ¶44 This is why the Waalen court confidently endorsed the circuit court's jury instruction, as well as the instruction in Hernandez. See Waalen, 130 Wis. 2d at 26, 28. incompatibility or inconsistency between the The court saw no term "under the influence" in Wis. Stat. § 346.63(1)(a)(1981-82) and the phrase "materially impaired because of his consumption of an alcohol beverage" in Wis. Stat. § 939.22(42)(1981-82). 20 However, the No. court was forced to repudiate the notion 2006AP2753-CR that "material impairment" meant "substantial impairment," as suggested by the Criminal Jury Instructions Committee, Waalen, 130 Wis. 2d at 27, because that notion appeared to undermine the purpose of the statute by raising the proof requirement for "under the influence" and because the language had no basis in statutory text or legislative history. ¶45 The Waalen court made the point that the Motor Vehicle Code did not contain a definition of "under the influence" "at the time th[e] case was initially tried." Id. at 25. But the court recognized that the legislature had changed the statute to a "degree" in 1984 by 1983 Wis. Act 459, § 12. Wis. 2d at 27-28. See Waalen, 130 Section 12 amended Wis. Stat. § 346.63(1)(a) (1981-82), so that the statute read: Operating under influence of intoxicant or other drug. (1) No person may drive or operate a motor vehicle while: (a) Under the influence of an intoxicant or a controlled substance or a combination of an intoxicant and a controlled substance, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving; . . . Wis. Stat. § 346.63(1)(a)(1983-84) (emphasis added). ¶46 The underscored language above is the language added by 1983 Wis. Act 459. the existing influence of This change did not modify or condition language, an that intoxicant is, or 21 a the language controlled "under substance the or a No. combination of Consequently, an the intoxicant Waalen and court a was mistaken 2006AP2753-CR controlled in substance." 1986 when it implied that the language "to a degree which renders him or her incapable of subsection safely (a) of driving" Wis. modified Stat. all provisions § 346.63(1)(1983-84). in This language applied only to "any other drug" or the combination of an intoxicant and "any other drug." ¶47 The Waalen court was correct when it wrote: "'material impairment' under sec. 939.22(42), Stats., exists when a person is incapable of driving safely, or is without proper control of all those faculties . . . necessary to avoid danger to others." Waalen, 130 Wis. 2d at 27 (emphasis internal quotation marks omitted). examples. phrase added) (citation and These phrases are used as But the court was not correct if it implied that the "incapable of safely driving" from Wis. Stat. § 346.63(1)(a) is part of the definition of "under the influence of an intoxicant" in Wis. Stat. § 939.22(42)(1983-84). ¶48 We acknowledge that 1995 Wis. Act 448 amended both Wis. Stat. § 346.63(1)(a) and Wis. Stat. § 939.22(42) in 1996, but, in our view, these amendments do not affect or alter this analysis.12 12 1995 Wis. Act 448 adopted the revised Uniform Controlled Substances Act and made other changes in the statutes relating to controlled substances. These changes included adding the phrase "controlled substance analog" to Wis. Stat. § 346.63 and Wis. Stat. § 939.22(42), as well as multiple other sections. 1995 Wis. Act 448, §§ 342, 445. These changes had no effect on the limited application of "incapable of safely driving." 22 No. ¶49 question Building whether on the these observations, circuit court's we 2006AP2753-CR turn response to to the the jury's request for clarification was error in light of Waalen. ¶50 The State asserts that "the Waalen language" did not ascribe a "peculiar" meaning to the term "materially impaired" in the context of criminal charges; thus the circuit court's response to the jury was acceptable and did not constitute error. ¶51 Judge Hubbard counters, and the court of appeals held, that Wolfgram's response to the jury's request for clarification should have provided "the Waalen language" (i.e., "incapable of safely driving") because the Waalen court's discussion of "material impairment" created a "peculiar meaning in the context of criminal charges." ¶12. Hubbard, 306 Wis. 2d 356, Hubbard argues that this language clarified the meaning of "materially impaired" and that the circuit court should have instructed the jury accordingly. ¶52 We disagree. The phrase "to a degree which renders him incapable of safely driving" does not affect the definition of "under the influence" in the Criminal Code. court to have "clarification" acceded it Hubbard's benefit. ¶53 would to Hubbard's have rewritten For the circuit request the for statute this for He was not entitled to such largesse. The Waalen court did not give "materially impaired" a "technical" or "peculiar" meaning unique to criminal law. Specifically, "the Waalen language" was not intended to define the statutory term "materially impaired." 23 Instead, the Waalen No. 2006AP2753-CR court used the language to describe two circumstances in which material impairment "exists." Waalen, 130 Wis. 2d at 27. were examples, not definitions. These Therefore, the Waalen court was not defining "materially impaired" with "the Waalen language." ¶54 means Other parts of the Waalen decision indicate acceptable for a definition circuit of "under court the to influence." Hubbard has not argued that endorsed by the Waalen court circuit court. instruct the a jury See specific should have regarding id. jury been at 26, the 28. instructions given by the These instructions would not have benefited him because "the Waalen language" is not part of any of the specific jury instructions endorsed by the Waalen court. Id. at 22, 25- 26 (reciting the circuit court's instruction in Waalen and the instruction argument given that in "the Hernandez). Waalen Consequently, language" defined Hubbard's "materially impaired" to give the term a "technical" or "peculiar" meaning in the context of criminal law is untenable. ¶55 Thus, when the jury asked Judge Wolfgram to define "'materially' impaired," he was on solid footing in relying on Wis. Stat. § 990.01(1), which provides in pertinent part: "All words and phrases shall be construed according to common and approved usage"; and he did not erroneously exercise his discretion when he directed the jury to "give all words not otherwise defined in the jury 24 instructions their ordinary No. meaning." The court would not have been 2006AP2753-CR correct to give Hubbard's clarification request.13 ¶56 facts. We note that the circuit court was also correct on the The jury's request for clarification focused on the word "materially," not on the term "materially impaired." The adverb "materially" is a word more likely to crop up in a lawyer's vocabulary question than about in the common word parlance, was a very and the good jury's probing The court's one. answer, to "give all words not otherwise defined in the jury instructions their ordinary meaning" was sound, responsive, and did not constitute an erroneous exercise of discretion. (Emphasis added.) ¶57 The circuit court had discretion to determine the necessity for, extent of, and form of reinstruction of the jury when responding to its request for clarification. Wis. 2d at 166 (citations omitted). Hareng, 90 Judge Wolfgram could have exercised his discretion by instructing the jury to re-read the jury instructions in their possession in light of the jury's request for a definition of "materially" impaired. 13 "[A] court Hubbard's position regarding "the Waalen language" also runs contrary to common sense. Wisconsin Stat. § 939.22 acts like a dictionary for the Criminal Code. It is counterintuitive that a statutory definition in Wis. Stat. § 939.22(42), which is undeniably intended to create a unique and peculiar meaning for a term in the law, would have imbedded within it another "technical" or "peculiar" explanatory term requiring further definition. This interpretation would render statutory language virtually impenetrable, which belies the inherent premise of Wis. Stat. § 990.01(1) and the specific definitions found in Wis. Stat. § 939.22 clarity. 25 No. is not obligated because the jury to provide believes a it jury is with important 2006AP2753-CR information to its solely decision." State v. Lombard, 2004 WI App 52, ¶20, 271 Wis. 2d 529, 678 N.W.2d 338. that However, once Judge Wolfgram correctly determined "materially impaired" was not defined by "the Waalen language," he did not erroneously exercise his discretion by responding that the jury should give undefined words in the jury instructions their ordinary meaning. "If the overall meaning communicated by the instructions was a correct statement of the Fischer, 168 Wis. 2d at law, no grounds for reversal exist." 850 (citations omitted). ¶58 We determined hold that that this the court court's of appeals decision in erred Waalen when gave it the statutory term "materially impaired" a "peculiar meaning in the context of criminal charges," Hubbard, 306 Wis. 2d 356, ¶12, and that the jury should have been instructed accordingly. ¶17. Id., Thus, the circuit court did not erroneously exercise its discretion when it responded to the jury's request for clarification by indicating that the jury should "give all words not otherwise defined in the jury instructions their ordinary meaning." This succinct answer may not always suffice, but it was correct on the facts presented. III. CONCLUSION ¶59 jury's We conclude that the circuit court's response to the request for clarification "materially impaired" does meaning the beyond in law not the 26 was have not a error. technical time-tested The or term peculiar explanations in No. standard jury instructions; therefore, the 2006AP2753-CR circuit court's response to the jury was not error, comported with Wis. Stat. § 990.01, and discretion. By the did not constitute an erroneous exercise of Accordingly, we reverse the court of appeals. Court. The decision reversed. 27 of the court of appeals is No. ¶60 SHIRLEY S. ABRAHAMSON, C.J. 2006AP2753-CR.ssa (concurring). In an effort to sustain the circuit court's erroneous instruction, the majority opinion adopts a self-contradictory and unworkable approach to Wis. Stat. § 940.25(1), which makes it a Class F felony to cause great bodily harm to another by operation of a vehicle while under the influence of an intoxicant. ¶61 Here are the essential facts: The State charged the defendant under Wis. Stat. § 940.25(1)(a), which provides that a person is guilty of a Class F felony if he or she "[c]auses great bodily harm to another human being by the operation of a vehicle while under the influence of an intoxicant" (emphasis added). The phrase "under the influence of an intoxicant" is defined in § 939.22(42), a separate which statutory provides in provision, relevant part Wis. that the Stat. term "'[u]nder the influence of an intoxicant' means that the actor's ability to operate a vehicle . . . is materially impaired because of his or her consumption of an alcohol beverage [or] a controlled substance . . . " (emphasis added). The present case focuses on the meaning of the words "materially impaired" in Wis. Stat. § 939.22(42). ¶62 The circuit court's initial instructions to the jury helped to clarify the meaning of "materially" for purposes of the statute. In its initial instructions, the circuit court stated in part that "[w]hat must be established is that the person has consumed a sufficient amount of Xanax or alprazolam to cause the person to be less 1 able to exercise the clear No. 2006AP2753-CR.ssa judgment and steady hand necessary to handle and control a motor vehicle." The circuit court's instructions were largely based on Wisconsin Criminal Jury Instruction No. 1262 (relating to Wis. Stat. § 940.25(1)(a)), which the circuit court merged with Wisconsin Criminal Jury Instruction No. 2664 (relating to Wis. Stat. § 346.63(1)(a), a Motor Vehicle Code provision).1 ¶63 In the course of its deliberations, the jury posed the following question to the circuit court: Could the judge define "materially" impaired? Does this mean that he was impaired enough to have an effect on outcome? If not, what? ¶64 The jury's confusion is understandable. As the court of appeals stated, "[g]iven the attention the term 'materially impaired' has attracted from the courts, the legislature, and the jury instruction committee, it is no wonder that a jury would also wrestle with what it actually means."2 1 See Wis JI Criminal 1262 at 2 (stating that "[w]hat must be established is that the person has consumed a sufficient amount of alcohol to cause the person to be less able to exercise the clear judgment and steady hand necessary to handle and control a motor vehicle."). Wis JI Criminal 1262 is written to be applied in cases in which the intoxicant allegedly consumed by the defendant is alcohol. The circuit court's instructions substitute "Xanax or alprazolam" for "alcohol." During oral argument, this court focused many of its questions on whether the circuit court's initial instructions to the jury were correct. The majority opinion does not address the court's and counsel's confusion about what instruction was most appropriate for the fact situation presented. The majority opinion's footnote, majority op., ¶24 n.7, does not reflect this court's difficulty in grappling with this issue. 2 State v. Hubbard, 2007 WI App 240, ¶12, 306 Wis. 2d 356, 742 N.W.2d 893. 2 No. ¶65 2006AP2753-CR.ssa The circuit court responded to the jury's question by instructing the jury to give the impaired" its ordinary meaning. statutory term "materially The circuit court answered the jury's question as follows: PLEASE GIVE ALL WORDS NOT OTHERWISE DEFINED IN THE JURY INSTRUCTIONS THEIR ORDINARY MEANING. ¶66 Here is the problem: Although the circuit court's reply to the jury may seem reasonable enough at first glance, it conflicts with interpretation this of the court's word longstanding, "materially" precedential in Wis. Stat. § 939.22(42). ¶67 The ordinary meaning of "materially" is "substantially."3 ¶68 However, in State v. Waalen, 130 Wis. 2d 18, 386 N.W. 2d 47 (1986), this court expressly held that for purposes of Wis. Stat. § 939.22(42), "materially" meaning of "substantially."4 cannot be given the Because the ordinary meaning of 3 See Webster's Third New Int'l Dictionary (1961) at 1392 (defining "material" as "being of real importance or great consequence: SUBSTANTIAL.") (capitalization in original); American Heritage Dictionary of the English Language (3d ed. 1992) at 1109 (defining "materially" to mean "[t]o a significant extent or degree; substantially."). 4 See State v. Waalen, 130 Wis. 2d 18, 27, 386 N.W.2d 47 (1986) (rejecting the Criminal Jury Instructions Committee's conclusion that the meaning of "material" is equivalent to the meaning of "substantial" for purposes of Wis. Stat. § 939.22(42)). 3 No. 2006AP2753-CR.ssa "materially" is "substantially," and the Waalen decision held that "materially" cannot be given the meaning of "substantially" for purposes of Wis. Stat. § 939.22(42), the circuit court's reply to the jury question contradicted the Waalen court's interpretation of the statute. ¶69 instant Such is the dilemma that this court confronts in the case: Either the circuit court is correct that the statutory term "materially" should be given its ordinary meaning (i.e., "substantially") or Waalen is correct that the statutory term "materially" "substantially." cannot be given the meaning of The circuit court and Waalen cannot both be right. ¶70 The Here is the majority opinion's answer to the problem: majority opinion interpretations of adopts the each word of the two "materially" in contradictory Wis. Stat. § 939.22(42). The majority opinion reaffirms the Waalen court's holding the that "substantially."5 the circuit statutory term "materially" cannot mean The majority opinion then goes on to uphold court's instruction that the statutory term "materially" should be given its ordinary meaning as a synonym of "substantially."6 The Waalen court construed the word "materially" in light of the statutory purpose instead of giving the word its ordinary meaning as the circuit court instructed the jury to do in the present case. The Waalen court stated that "'[m]aterial impairment' should not be given a definition that is inconsistent with the purpose of the statute . . . ." Waalen, 130 Wis. 2d at 27. 5 See majority op., ¶¶35-36. 6 Majority op., ¶¶55-56. 4 No. ¶71 Stat. 2006AP2753-CR.ssa The majority opinion's mangled interpretation of Wis. § 939.22(42) is a disservice to Wisconsin's circuit courts, district attorneys, defense counsel, and the Wisconsin Jury Instruction Committee, all of whom rely upon this court for guidance on 939.22(42)'s matters of definition statutory of "under interpretation. the influence Section of an intoxicant" (which provides in part that a person is under the influence of an intoxicant when he or she impaired) is incorporated into many statutes. is "materially" See, for example, statutes that criminalize causing death by use of a vehicle or firearm while under the influence of an intoxicant,7 sexually assaulting a victim who is under the influence of an intoxicant,8 causing great bodily harm by operation of a vehicle while under the influence of an intoxicant,9 and operating or going armed with a firearm while under the influence of an intoxicant.10 This court has failed in its obligation to provide a clear and coherent sense of what the phrase "materially impaired" means. ¶72 Here is my answer to the problem: I would stick with Waalen and hold that the circuit court erroneously instructed the jury in response to its question. The circuit court could have answered the jury's question in a manner consistent with Waalen's interpretation of Wis. Stat. § 939.22(42). 7 Wis. Stat. § 940.09(1)(a), (c); (1g)(a), (c). 8 Wis. Stat. § 940.225(2)(cm). 9 Wis. Stat. § 940.25(1)(a), (c). 10 Wis. Stat. § 941.20(1)(b). 5 No. ¶73 2006AP2753-CR.ssa For example, the circuit court could have accepted the defendant's suggestion to draw language directly from the Waalen opinion, which states that a person is "materially" impaired for purposes of § 939.22(42) when he or she "is incapable of driving safely, or is without proper control of necessary to avoid danger to others."11 could have repeated language from all those faculties Or the circuit court its own instructions, reiterating to the jury that "[w]hat must be established is that the person has consumed a sufficient amount of Xanax or alprazolam to cause the person to be less able to exercise the clear judgment and steady hand necessary to handle and control a motor vehicle." Either approach, in my view, would have been sufficient. ¶74 I also conclude, however, that the circuit court's error was harmless error under the circumstances of the present case. The Waalen court made clear that the meaning of "materially" for purposes of Wis. Stat. § 939.22(42) is less demanding of the prosecution than the term "substantially" which constitutes the ordinary dictionary meaning of "materially."12 As the State explains in its brief to this court, "[i]f the trial court's direction to the jury in this case to give the words 'materially impaired' their 'ordinary meaning' opened the 11 Waalen, 130 Wis. 2d at 27 (quotation marks, ellipsis, and citation omitted). 12 Id. ("Requiring 'substantial impairment' of an individual's ability to operate a vehicle before that person could be found 'under the influence' would be inconsistent with the expressed legislative intent because it would not provide maximum safety for all users of state highways."). 6 No. 2006AP2753-CR.ssa door to the possibility that some jurors might impose a higher threshold [of guilt] . . . it was the state, not Hubbard, that was prejudiced by that possibility. Hubbard cannot complain about an instruction that . . . potentially made it harder for the state to convict him."13 ¶75 For the reasons set forth, I concur in the court's mandate but write separately. ¶76 I am authorized to state that Justices ANN WALSH BRADLEY and LOUIS B. BUTLER, JR. join this opinion. 13 Reply Brief of Plaintiff-Respondent-Petitioner at 11. 7 No. ¶77 LOUIS B. BUTLER, JR., J. Justice Abrahamson's concurrence. 2006AP2753-CR.lbb (concurring). I join Chief However, I am compelled to write separately to make it clear that the majority's opinion should not criminal be construed prosecution of as an precedent individual for who sanctioning takes the prescription medication medicine that is designed to maintain his or her health and general welfare at its prescribed dosage, only to then find him or herself arrested for driving under the influence. ¶78 is to The purpose of the Uniform Controlled Substances Act prevent abuse of drugs, not to create new criminal penalties for those who properly take prescription medicine as prescribed by their physicians in order to be more functional. See Wis. Stat. § 961.001: Declaration of intent. The legislature finds that the abuse of controlled substances constitutes a serious problem for society. As a partial solution, these laws regulating controlled substances have been enacted with penalties. The legislature, recognizing a need for differentiation among those who would violate these laws makes this declaration of legislative intent: (1g) Many of the controlled substances included in this chapter have useful and legitimate medical and scientific purposes and are necessary to maintain the health and general welfare of the people of this state. (Emphasis added.) As this statutory language acknowledges, many of those drugs labeled as "controlled substances" are prescribed for the very purpose of helping individuals function better in society, and have beneficial medicinal 1 purposes, making it No. 2006AP2753-CR.lbb safer, not more dangerous, both for those behind the wheel and those in their paths. ¶79 The case at hand involves prescription drug abuse involving a medication taken in excess of its prescribed dosage. The majority points out the dangers resulting from an overdosage of the prescription drug Xanax, such as somnolence, confusion, impaired coordination, and diminished reflexes. ¶6 n. 3. The majority also correctly Majority op., observes that the defendant in this case took 13 Xanax pills before the automobile accident, which exceeded his prescribed dosage for the drug. Id. ¶80 This is not a case involving an individual taking a medication at its prescribed dosage.1 It is critical to make this opinion distinction clear, lest today's be misread as sending a dangerous message to individuals taking prescription medications to disregard their doctor's orders and stop taking their prescribed medications if they want to retain their right to drive and thereby continue participating fully in society. ¶81 Prescription medications serve a critical role in the preservation of health and safety of individuals. This court 1 I recognize that some prescriptions include warnings clearly specifying that a person taking the medication should not operate an automobile because of the effects the medication would have on the person. Failing to follow the prescription's instructions, in my view, would be improper and potentially subject a person to criminal prosecution. Other prescriptions include warnings clearly indicating that before a person operates an automobile, the person should first determine what effects the medication might have. This opinion does not address such situations. 2 No. 2006AP2753-CR.lbb has long recognized that "[i]t is not only desirable that the drugs be dispensed to the public by skillful and competent persons to avert peril from occasional mistakes, but it is far more desirable, nay, practically essential, that medicines be within prompt and easy reach by the public." State v. Evans, 130 Wis. 381, 388, 110 N.W. 241 (1907). ¶82 Our state already recognizes that "the effects of prescription medication can form the basis of an involuntary intoxication defense." State v. Gardner, 230 Wis. 2d 32, 40, 601 N.W.2d 670 (Ct. App. 1999); see also 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 4.10(f), at 560 (1986). Under the Model Penal Code, intoxication that is not self-induced is an affirmative defense when it renders the actor incapable of appreciating the criminality of his or her conduct. Gardner, 230 Wis. 2d at 40; see also Model Penal Code § 2.08(4) (1962). An exclusion to the definition of "self-induced" intoxication exists when the actor knowingly introduces into his or her body substances pursuant to medical advice. Gardner, 230 Wis. 2d at 41; see also Model Penal Code § 2.08(5)(b); Phillip E. Hassman, When Intoxication Deemed Involuntary so as to Constitute a Defense to Criminal Charge, 73 A.L.R.3d 195 § 7 (1977). Thus, available when the the "involuntary intoxication medication taken as directed." ¶83 intoxication was due to defense is prescription Gardner, 230 Wis. 2d at 35. Moreover, the legislature has specifically adopted a valid prescription defense in OWI cases for detectable amounts of methamphetamine, gamma hydroxybutyric 3 acid, or delta 9 No. tetrahydrocannabinol § 346.63(1)(d).2 in a defendant's 2006AP2753-CR.lbb blood. Wis. Stat. It is ludicrous to suggest that the legislature would provide a valid prescription defense for these otherwise illegal restricted controlled substances, while at the same time refusing to recognize a valid prescription defense for properly dispensed medicine taken at its proper dosage. ¶84 An improper contravene the intent "controlled substances" reading of of the within today's legislature the Wisconsin opinion in would addressing Statutes. The statutes addressed by the majority creating criminal penalties for the inappropriate use and abuse of controlled substances must be read in conjunction with the provisions of Wis. Stat. § 961.001 of the Uniform Controlled Substances Act quoted above, with our 2 state's recognition of an involuntary intoxication Wisconsin Stat. § 346.63 provides in relevant part: (1) No person may drive or operate a motor vehicle while: . . . . (am) The person has a detectable amount of a restricted controlled substance in his or her blood. . . . . (d) In an action under par. (am) that is based on the defendant allegedly having a detectable amount of methamphetamine, gamma-hydroxybutyric acid, or delta-9tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol. (Emphasis added). 4 No. 2006AP2753-CR.lbb defense, and with our state's recognition of an OWI prescription defense in cases involving a detectable amount of a restricted controlled substance in a defendant's blood. ¶85 The Uniform Controlled Substances Act reveals the legislature's intent to criminalize only that behavior linked to the abuse of controlled substances, and not to criminalize that behavior involving the proper use of prescription medicine. We must If not lose sight of this essential distinction. prescription medication is of the type that may assist a person in functioning more healthily, it is important to make sure that our evaluations of OWI cases do not impede the progress to be gained through the medication's use. the legislature intended to penalize Because it is clear that those who abuse drugs, while not extending criminal penalties to those who take at its proper dosage medicine that is properly prescribed under the direction of a doctor or pharmacist, that legislative purpose should not be undermined. ¶86 For the foregoing reasons, I respectfully concur. 5 No. 1 2006AP2753-CR.lbb

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