concurring specially:
In State v. Lee, 116 Idaho 515, 777 P.2d 737 (Ct.App.1989) (review denied), we followed Wilkoff v. Superior Court, 38 Cal.3d 345, 211 Cal.Rptr. 742, 696 P.2d 134 (1985), holding that a defendant who has committed several homicides in the course of a single driving incident, has committed the act prohibited by the statute several times. The reasoning behind this holding is that “vehicular homicide” is generally considered a crime of violence against the person of another. “The actus reus of vehicular manslaughter is homicide — the unlawful killing of a human being.” Wilkoff v. Superior Court, 211 Cal.Rptr. at 745, 696 P.2d at 137. Where the prohibited act is committed more than once, each victim represents a separate violation. “A defendant may properly be convicted of multiple counts for multiple victims of a single criminal act only where the act prohibited by the statute is centrally an ‘act of violence against the person.’ ” Id. 211 Cal. Rptr. at 747, 777 P.2d at 139.
However, as Wilkoff makes clear, a different rule may apply to crimes such as aggravated DUI under I.C. ,§ 18-8006(1):
The unlawful act denounced by the Vehicle Code is the ‘mere act of driving a vehicle upon a public highway while intoxicated’; the act is either a misdemean- or or a felony, depending on whether personal injuries result therefrom. The felony section simply ‘graduate[s] the punishment according to the [more serious] consequences of the forbidden act____ The fact that there are several victims cannot transform the single act into multiple offenses.’ [quoting People v. Lobaugh, 18 Cal.App.3d 75, 95 Cal. Rptr. 547 (1971).]
Wilkoff v. Superior Court, 211 Cal.Rptr. at 745, 696 P.2d at 137.
Nevertheless, in People v. McFarland, 47 Cal.3d 798, 254 Cal.Rptr. 331, 765 P.2d 493 (1989), a case we cite in our opinion, the California Supreme Court upheld a conviction for vehicular manslaughter and a conviction for felony DUI where the defendant caused the death of one person and injury to another person in a single act of driving under the influence. We reach the same result in this opinion. I concur specially to note: We do not need to decide here whether aggravated DUI is a “crime of violence against the person” or whether multiple offenses may be charged under I.C. § 18-8006(1) where a single act of driving under the influence results in multiple injuries. These questions need not be answered here.