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State v. Hubbard: Defining

By: ANNE REED//November 5, 2007//

State v. Hubbard: Defining

By: ANNE REED//November 5, 2007//

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Read it aloud, and it sounds like any other Court of Appeals opinion: measured, calm, a little dull. But in that quiet tone, District II reached out last week to say that juries' questions about the law ought to be answered, if answers are out there. In State v. Hubbard, authored by Judge Snyder on October 24, the court reversed a conviction, saying that when the jury inquired about a key term for which there is no pattern jury instruction, the trial court should have turned to a twenty-year-old Wisconsin Supreme Court case to give them a definition.

"Could the judge define 'materially impaired'?"

The facts, like the court's language, have a straightforward feel. Mr. Hubbard was charged with injury by intoxicated use of a motor vehicle, after he rear-ended another car so hard it hit a tree, causing "serious injuries" to a nine-year-old girl. Police said he seemed disoriented, said he had taken prescription medication, and had "several types of medication" in his car. Ozaukee County Circuit Court Judge Thomas Wolfgram instructed the jury that "under the influence," an element of the crime, meant Hubbard's "ability to operate a vehicle was materially impaired because of consumption of a prescription medication."

The deliberating jury sent out a question: "Could the judge define 'materially impaired'? Does this mean that he was impaired enough to have an effect on outcome? If not, what?" Judge Wolfgram told them, as judges often tell juries, to give the word its ordinary meaning. It was a discretionary call on his part, and the jury came back guilty.

Twenty-five years, no definition

What the jurors didn't know was that they were hardly the first to struggle with "materially impaired." As the court's opinion explains, the reason there's no pattern instruction is that the jury instruction committee hasn't been able to get consensus on "materially impaired" for 25 years. They tried in 1982, proposing an instruction that would have said, "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 materially, that is substantially, impaired." Perhaps because it's tautological — material, apparently, means material — judges didn't like the instruction, and in State v. Waalen in 1986 (that's too old for a free on-line version, but it's 130 Wis. 2d 18, 386 N.W.2d 47), the Supreme Court affirmed a trial court who refused to give it. The Waalen court held that "material" is more than "substantial," and that material impairment "exists when a person is incapable of driving safely, or 'is without proper control of all those faculties … necessary to avoid danger to others.'"

The jury instruction committee — piqued? — deleted "substantially" from the pattern, and, according to the Hubbard court, "stated that the use of 'materially' in the motor vehicle code 'invited definition' but that it could not be helpfully defined[.]"

Yes it can, said District II, and the trial judge should have defined it. Turning to cases from the U.S. Supreme Court, the Illinois Court of Appeals, and the Eighth Circuit — and finding implied support in Wisconsin cases upholding trial judges who didn't answer jury questions — the court held that "when a jury demonstrates confusion about the law, and where relevant help is available, the circuit court should provide clarification."

"Our discretionary reversal power"

So the trial judge made a mistake, but does that mean Mr. Hubbard gets a new trial? The standard for that is tough, the court acknowledged: "Generally, where the circuit court errs in instructing the jury, we must then determine whether that error affected the substantial rights of a party such that there was a reasonable possibility that the error contributed to the outcome." But having come so far, the court of appeals didn't go there. "[W]e also have discretionary authority under Wis. Stat. § 752.35 to order a new trial "to accomplish the ends of justice," the court said. "When we invoke our discretionary reversal power on grounds that the real controversy has not been tried, we need not determine whether the outcome of the trial would have been different on retrial." New trial ordered.

The bottom line for those who try DUI cases: "[M]aterial impairment 'exists when a person is incapable of driving safely, or "is without proper control of all those faculties … necessary to avoid danger to others,"'" and it's okay to tell the jury that. The bottom line for the rest of us may be a welcome openness to jury instructions that don't come from the pattern book but do correctly state the law. Many courts recite that juries need to understand the law they must apply; many fewer courts, in the end, give that goal any real importance. This court did.

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