concurrence">SHIRLEY S. ABRAHAMSON, C.J.

¶ 60. (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 "[clauses 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 a separate statutory provision, Wis. Stat. § 939.22(42), which provides in relevant part that the 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 "[wlhat 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." The circuit court's instructions were largely based on *29Wisconsin Criminal Jury Instruction No. 1262 (relating to Wis. Stat. § 940.25(l)(a)), which the circuit court merged with Wisconsin Criminal Jury Instruction No. 2664 (relating to Wis. Stat. § 346.63(l)(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

*30¶ 65. The circuit court responded to the jury's question by instructing the jury to give the statutory term "materially impaired" its ordinary meaning. 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 this court's longstanding, precedential interpretation of the word "materially" 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" cannot be given the meaning of "substantially."4 Because the ordinary meaning of "materially" is "substan*31tially," and the Waalendecision 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 Waalencourt's interpretation of the statute.

¶ 69. Such is the dilemma that this court confronts in the instant case: Either the circuit court is correct that the statutory term "materially" should be given its ordinary meaning {i.e., "substantially") or Waalenis correct that the statutory term "materially" cannot be given the meaning of "substantially." The circuit court and Waalencannot both be right.

¶ 70. Here is the majority opinion's answer to the problem: The majority opinion adopts each of the two contradictory interpretations of the word "materially" in Wis. Stat. § 939.22(42). The majority opinion reaffirms the Waalencourt's holding that the statutory term "materially" cannot mean "substantially."5 The majority opinion then goes on to uphold the circuit court's instruction that the statutory term "materially" should be given its ordinary meaning as a synonym of "substantially."6

¶ 71. The majority opinion's mangled interpretation of Wis. Stat. § 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 matters of statutory interpretation. Section 939.22(42)'s definition of "under the influence of an intoxicant" (which provides in part that a person is *32under the influence of an intoxicant when he or she is "materially" impaired) is incorporated into many statutes. 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 Waalenand 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).

¶ 73. For example, the circuit court could have accepted the defendant's suggestion to draw language directly from the Waalenopinion, 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 all those faculties necessary to avoid danger to others."11 Or the circuit court could have repeated language from its own instructions, reiterating to the jury that "[w]hat must be established is that the person has consumed a sufficient *33amount 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 Waalencourt 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 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.

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.

State v. Hubbard, 2007 WI App 240, ¶ 12, 306 Wis. 2d 356, 742 N.W.2d 893.

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.").

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)).

The Waalencourt 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 Waalencourt stated that" '[m]aterial impair*31ment' should not be given a definition that is inconsistent with the purpose of the statute ...." Waalen, 130 Wis. 2d at 27.

See majority op., ¶¶ 35-36.

Majority op., ¶¶ 55-56.

Wis. Stat. § 940.09(l)(a), (c); (1g)(a), (c).

Wis. Stat. § 940.225(2)(cm).

Wis. Stat. § 940.25(1)(a), (c).

Wis. Stat. § 941.20(1)(b).

Waalen, 130 Wis. 2d at 27 (quotation marks, ellipsis, and citation omitted).

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.").

Reply Brief of Plaintiff-Respondent-Petitioner at 11.

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