State v. Jonathan J. Hubbard, 2007 WI App 240, (AG’s) PFR filed 11/20/07
For Hubbard: Steven Zaleski
Issue/Holding: The construction of “materially impaired” by State v. Waalen, 130 Wis. 2d 18, 27, 386 N.W.2d 47 (1986), clarifies the meaning of that OWI element:
¶9 In Waalen, … (t)he court stated 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.’” Id. at 27. ……
¶11 We are convinced that the Waalen decision clarifies the meaning of the term “materially impaired,” which determines whether a person is “under the influence” for purposes of Wis. Stat. § 940.25(1)(a). Judicial construction of a statutory term becomes part of the statute unless subsequently amended by the legislature. See Wenke v. Gehl Co., 2004 WI 103, ¶31 n.17, 274 Wis. 2d 220, 682 N.W.2d 405. Where the task is to determine what a statute means, it is appropriate to resort to common and approved usage of terms, which can be established by case law. See State v. Dalton, 98 Wis. 2d 725, 739, 298 N.W.2d 398 (Ct. App. 1980).
