At her OWI 2d trial, Mravik asked the judge to modify Wis. J.I.—Criminal 2663’s definition of “under the influence of an intoxicant.” The trial judge declined. The court of appeals finds no error because the instruction as a whole conveys the correct meaning of the phrase.
Mravik requested the judge to insert the word “materially” before the word “impaired” in the definition of “under the influence of an intoxicant,” so that it would read, “Under the influence of intoxicant means that the [d]efendant’s ability to operate a vehicle was materially impaired because of the consumption of an alcoholic beverage.” (¶5). Mravik argued this was necessary to make the instruction consistent with the statutory definition of “under the influence of an intoxicant” in § 939.22(42), which includes the phrase “materially impaired.” That definition applies in all cases in which “under the influence of an intoxicant” is an element. State v. Waalen, 130 Wis. 2d 18, 27-28, 386 N.W.2d 47 (1986).
The court of appeals agrees that “impaired” is not the same as “materially impaired,” so leaving out “materially” would be a problem if Instruction 2663 gave no other information on the topic. (¶15). But it does:
¶16 ….[T]he jury here was not left to wonder what the unqualified word “impaired” might mean or, more specifically, left to wonder whether a finding of material impairment is required. The following explanatory language in the definition given by the court here provided the jury with an explanation of “impaired” that sets a threshold of culpable impairment at least as high as would be conveyed by the omitted qualifier “materially”:
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.
… What is required is that the person’s ability to safely control the vehicle be impaired.
¶17 This explanation conveyed the following critical information. Operators are not necessarily impaired whenever they have consumed alcohol, but instead the pertinent, “material,” threshold of impairment occurs when the operator is, as a result of consumption, “less able to exercise the clear judgment and steady hand necessary to handle and control a motor vehicle,” and the operator’s “ability to safely control the vehicle has been impaired.” In other words, an operator could be impaired to some degree by consumption while still fully able to exercise the clear judgment and steady hand required by law, but the same operator could proceed to consume an amount of alcohol sufficient to render the operator “less able to exercise the clear judgment and steady hand” required and thus be impaired to the point at which the operator’s specific ability to safely control the vehicle has been compromised. In sum, the “less able” concept provides a definition of unlawful impairment that is at least as specific and potentially favorable to the defense as use of the phrase “materially impaired.” For these reasons, I conclude that the pertinent portions of the Instruction 2663 given here, read as a whole, accurately communicated the legal meaning of “under the influence of an intoxicant,” even though it lacked the word “materially.”
The court also concludes the additional language in the instruction is consistent with the definitions of culpable impairment conveyed in instructions endorsed by Waalen and other cases. (¶¶18-21).