concurring in part and dissenting in part.
¶ 30 I concur entirely with part I of the majority opinion, and I agree with the majority’s initial conclusion in part II that we may properly review defendant’s unpreserved multiplicity or double jeopardy claim for plain error. But I respectfully dissent from the remainder of part II for the reason that, in my view, the two offenses at issue do not meet the requirements of the strict elements test. This is because proof of facts establishing the statutory elements of vehicular assault — DUI does not necessarily establish all of the elements of DUI. I would thereftme affirm defendant’s DUI conviction.
¶ 31 As the majority explained, the Double Jeopardy Clauses of the United States and Colorado Constitutions bar multiple punishments for the same offense. Meads v. People, 78 P.3d 290, 293 (Colo.2003). Specifically, a defendant may not be convicted for two offenses arising from the same conduct where one is included in the other. Id. Colorado courts apply a “strict elements test” to determine if a crime is a lesser included offense of another crime. Id. at 293-94; People v. Zweygardt, 2012 COA 119, ¶13, 298 P.3d 1018, 1021. Under this test, “if proof of facts establishing the statutory elements of the greater offense necessarily establishes all of the elements of the lesser offense, the lesser offense is included.” Meads, 78 P.3d at 294 (emphasis added). In Meads, the supreme court expressly held that consideration of the pleadings is “outside the purview of the strict elements test.” Id. at 295.
¶ 32 Two divisions of this court have previously held in published opinions that DUI is a lesser included offense of vehicular assault — DUI. People v. Cruthers, 124 P.3d 887, 890-91 (Colo.App.2005); People v. Grassi, 192 P.3d 496, 500 (Colo.App.2008). Under this view, DUI satisfies the “strict elements test” for a lesser-included offense because its elements “must necessarily be proved to sustain a conviction for vehicular assault.” Cruthers, 124 P.3d at 890; see also Grassi, 192 P.3d at 500. I agree with the majority that a division of this court is not obligated to follow the decisions of another division, even though we give such decisions considerable deference. In re Estate of Becker, 32 P.3d 557, 563 (Colo.App.2000), ajfd sub nom. In re Estate of DeWitt, 54 P.3d 849 (Colo.2002).
¶ 33 Since briefing in this ease was completed, however, a majority of another division of this court concluded that DUI is not a lesser included offense of vehicular assault— DUI. People v. Medrano-Bustamante, 2013 COA 139, ¶¶6-16, — P.3d-, 2013 WL 5760988; cf. id. at ¶¶97-100 (Webb, J., dissenting) (declining to reach the issue for procedural reasons). The majority in that case employed the reasoning used by another division, which held that careless driving is *59not a lesser included offense of vehicular assault - reckless because vehicular assault did not “necessarily inelude[ ] all of careless driving’s essential elements.” Zweygardt, 298 P.3d at 1021. The Zweygardt division came to this conclusion after determining that the statutory language used to define vehicular assault was broader than that used to define careless driving. Id. at ¶¶21, 24, 298 P.3d at 1023; see also People v. Zubiate, 2013 COA 69, ¶¶49-52, — P.3d —, 2013 WL 1909126 (holding for similar reasons that driving under restraint is not a lesser included offense of driving after revocation prohibited). Like the majority in Medrano-Busta-mante, I conclude that the analysis employed by the Zweygardt division is persuasive and that the elements required for vehicular assault - DUI are broader than those necessary to establish DUI.
¶ 34 A defendant can be convicted under the Criminal Code of vehicular assault — DUI if he or she “operates or drives a motor vehicle while under the influence of alcohol.” § 18 — 3—205(l)(b)(I), C.R.S.2013 (emphasis added). In contrast, one can be convicted of DUI under the Motor Vehicle Law if he or she “drive[s] a motor vehicle or vehicle.” § 42-4-1301(l)(a), C.R.S.2013 (emphasis added).
¶ 31 The first apparent difference between the two statutes is that vehicular assault - DUI includes the term “operate,” while DUI only includes the term “drive.” Since the vehicular assault — DUI statute included both terms, it may fairly be presumed that the General Assembly understood the terms to have different meanings. Zweygardt, 298 P.3d at 1023. These terms were distinguished by the supreme court in People v. Stewart, 56 P.3d 107 (Colo.2002), which observed that “ ‘drive’ means to exercise ‘actual physical control’ over a motor vehicle,” id. at 115 (quoting People v. Swain, 959 P.2d 426, 431 (Colo.1998)), while “‘operate’ is somewhat broader, connoting the action of causing something ‘to occur ... [or] to cause to function,’ ” id. (quoting People v. Gregor, 26 P.3d 530, 532 (Colo.App.2000)). Thus, “one could operate a vehicle without necessarily driving it.” Zweygardt, 298 P.3d at 1023; see also Zubiate, ¶51. DUI, therefore, requires proof of driving, while vehicular assault — DUI does not. On this basis, then, DUI is not a lesser included offense of vehicular assault - DUI.
¶32 The statutes also differ because each allows for conviction based on the use of different types of vehicles. The Criminal Code provides the relevant definition of “motor vehicle” for purposes of establishing vehicular assault, which “includes any self-propelled device by which persons or property may be moved, carried, or transported from one place to another by land, water, or air, except devices operated on rails, tracks, or cables fixed to the ground or supported by pylons, towers, or other structures.” § 18 — 1— 901(3)(k), C.R.S.2013 (emphasis added). However, a DUI conviction can arise from driving either a vehicle or motor vehicle, as defined under the Motor Vehicle Law. Accordingly, for purposes of a DUI conviction, a “vehicle” is “a device that is capable of moving itself, or of being moved, from place to place upon wheels or endless tracks,” and a “motor vehicle” is “any self-propelled vehicle that is designed primarily for travel on the public highways.” § 42 — 1—102(58), (112), C.R.S.2013 (emphasis added). Thus, for example, someone can commit vehicular assault - DUI, but not DUI, by operating a speedboat or airplane while intoxicated. See Zweygardt, 298 P.3d at 1024.
¶33 Based on this difference as well, I conclude that DUI is not a lesser included offense of vehicular assault — DUI.
¶ 34 I therefore would not follow Cruthers or Grassi because, first, they did not address the issues discussed above and were decided before the decisions in Medrano-Busta-mante, Zweygardt, and Zubiate, and, second, I am persuaded by the reasoning of the latter decisions. I therefore respectfully dissent.
¶35 Finally, I note that not only is our division divided on this issue, but so is our court. At least two other divisions of the court of appeals have recently reached conclusions similar to mine in unpublished and, in my view, well-reasoned opinions. See People v. Hill, (Colo.App. No. 12CA0168, Aug. 8, 2013), 2013 WL 4047498 (not published pursuant to C.A.R. 35(f)); People v. Reyna-*60Abarca, (ColoApp. No. 10CA0637, Aug. 1, 2013), 2013 WL 4008874 (not published pursuant to CAR. 36(f)). Yet another division followed Cruthers on this issue without discussion in an unpublished opinion. People v. Orta, (Colo.App. No. 10CA1586, Oct. 11, 2012), 2012 WL 4829187 (not published pursuant to C.A.R. 35(f)). Thus, by my count, excluding the present case and Zweygardt and Zubiate (which dealt with different offenses involving identical or similar relevant language), three divisions have reached conclusions consistent with that reached by the majority here, and three divisions have reached conclusions consistent with this dissent and in conflict with the first three divisions. See C.A.R. 49(a)(3) (conflicting court of appeals decisions may be considered as a reason for certiorari review).