¶ 30. (concurring). I write separately because although the majority opinion properly interprets the statutes and correctly applies existing double jeopardy jurisprudence, it results in the hollow protection of a fundamental constitutional right. The right to be free from double jeopardy deserves greater protection than that afforded by the inadequate test of Blockburger v. United States, 284 U.S. 299 (1932), and the incomplete response set forth in our state statutes.
¶ 31. The Double Jeopardy Clause of the Fifth Amendment declares that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const, amend. V.1 This clause "protects *346against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense." Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 306-307 (1984); Jones v. Thomas, 491 U.S. 376, 380-381 (1989). The case presently before the court concerns the first of these, protection from a second prosecution for the "same offense" after an acquittal.
¶ 32. The majority is correct to point to the Block-burger "same elements" test, and its legislative incarnation at Wis. Stat. § 939.71, for purposes of applying federal constitutional and Wisconsin statutory double jeopardy protections to successive prosecution cases such as the one at hand. "Generally, this court's construction of Wisconsin's prohibition against double jeopardy is guided by the rulings of the United States Supreme Court." State v. Kurzawa, 180 Wis. 2d 502, 522, 509 N.W.2d 712 (1994). The "same elements" test indicates that successive prosecutions may avoid all constitutional and statutory double jeopardy prohibitions so long as the charged offenses at serial prosecutions do not have the same elements. See Blockburger, 284 U.S. at 304. As the majority demonstrates, the prosecuted crimes in this case, while extremely similar and arising from the same altercation, do not have the same elements.
¶ 33. However, allowing the defendant in this case to be tried for a second time based on a criminal charge which would otherwise have been precluded had the circuit court not erroneously excluded a jury instruction on the less serious offense at the first trial, seems to implicitly violate the principle of double jeopardy. The federal and state constitutional bans on *347subsequent prosecutions after an acquittal for the "same offense:"
prevent[ ] the government from 'makfing] repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity.' The Clause addresses a further concern as well, that the government not be given the opportunity to rehearse its prosecution, 'honing its trial strategies and perfecting its evidence through successive attempts at conviction'....
United States v. Dixon, 509 U.S. 688, 747 (1993)(Souter, J. concurring in part and dissenting in part)(internal citations omitted).
¶ 34. I fail to see how the State is not gaining an advantage from what it learned in the first prosecution of the defendant. The very facts giving rise to the first battery charge on which the defendant was acquitted also give rise to the battery charge in the second prosecution. True, the legislature has chosen to include an element in each of the offenses not present in the other. But in this day and age of burgeoning criminal statutes, continued exclusive reliance on the "same elements" test seems to leave the double jeopardy clause as applied to successive prosecutions with little vitality.
¶ 35. I am not alone in my concern with the "same elements" test. While Blockburger currently enjoys the approval of the United States Supreme Court, it does so by a one vote majority — a majority which has disappeared in the past. See Grady v. Corbin, 495 U.S. 508 (1990), overruled by United States v. Dixon, 509 U.S. 688 (1993). Indeed, the constitu*348tional protection provided under the Blockburger analysis has proven so tenuous that at least one state supreme court has rejected it for purposes of interpreting its own identical state constitutional double jeopardy provisions. See State v. Lessary, 865 P.2d 150, 154 (Haw. 1994) ("When the United States Supreme Court's interpretation of a provision present in both the United States and Hawai'i Constitutions does not adequately preserve the rights and interests sought to be protected, we will not hesitate to recognize the appropriate protections as a matter of state constitutional law.")
¶ 36. More importantly, both this court and the legislature have acknowledged the imperfections in the "same elements" test. In Kurzawa this court conceded that "Blockburger is not a perfect test," but did not discover an alternative test more to the court's liking. See Kurzawa, 180 Wis. 2d at 525. The legislature in turn has also partially abandoned the "same elements" test for purposes of cases involving multiple punishments for the same offense. Under Wis. Stat. § 939.66(2m) a defendant cannot be convicted of both a battery and an equal or lesser battery, regardless of the particular element existing for the count charged. See Wis. Stat. § 939.66(2m). The legislature took such action in direct response to a potential "same elements" problem arising in State v. Richards, 123 Wis. 2d 1, 365 N.W.2d 7 (1985).
¶ 37. Yet, while the legislative action better protects defendants from multiple punishments for the same offense under the Double Jeopardy Clause, the legislative action is incomplete. It fails to give defendants any additional protections from multiple prosecutions. Wis. Stat. § 939.66(2m) currently indicates that the term "same offense" for purposes of *349multiple punishments for the same battery is to be read to include all "less serious or equally serious" batteries. However, similar treatment is not offered those defendants acquitted of one battery count, yet facing a subsequent prosecution on another "less serious or equally serious" battery charge arising from the same occurrence. Instead, the State is allowed to repeatedly prosecute the defendant for an included battery offense until the State either exhausts the list of included offenses subject to Wis. Stat. § 939.66(2m), or obtains a conviction, whichever occurs first.
¶ 38. As I have indicated, the majority's decision today comports with current interpretations of the federal and state double jeopardy protections. The Blockburger "same elements" test is the sole test for the federal and state double jeopardy analysis. The test is simple and easily applied. Yet, it is inadequate. The simple formula seems to evade constitutional protections. Moreover, even though the legislature has acknowledged the problems with the "same elements" test in the statutory framework for multiple punishment cases, its response is incomplete. The legislature has yet to act in relation to multiple prosecutions. Such inaction seems directly contrary to the purposes of the multiple prosecution component of the Double Jeopardy Clause.
¶ 39. I am authorized to state that SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE, DONALD W. STEINMETZ, J., and JANINE P. GESKE, J. join this opinion.
Article I, § 8(1) of the Wisconsin constitution provides that "no person for the same offense may be put twice in jeopardy of punishment. . . ." The state and federal constitutional provisions, while similar, are not identical.