concurring specially.
I concur in Division 2 but, although I do not concur in Division 1, I concur in the affirmance of the conviction.
Because of the wording of the accusation, it was error to give OCGA § 40-6-391 (a) in its entirety. Two counts of the three-count accusation charged DUI crimes. Count 1 charged that Anderson did “operate a motor vehicle . . . while under the influence of intoxicating liquors, drugs. . . .” Count 2 charged that he did “operate a mo*597tor vehicle . . . while there was 0.12 percent or more by weight of alcohol in his blood. . . The court instructed the jury as to all four subsections. There was no evidence of drug influence, so a conviction under either subsection (2) or subsection (3) would be invalid as unsupported by the evidence.
Decided April 1, 1991 Rehearing denied April 29, 1991 Harrison & Harrison, Samuel H. Harrison, for appellant. Gerald N. Blaney, Jr., Solicitor, David M. Fuller, Rosanna Musengo, Jeffrey P. Kwiatkowski, Assistant Solicitors, for appellee.The accusation went out with the jury, and it had difficulty dealing with the two counts. Among other questions it asked, “Why are there two counts of DUI?” The court responded: “I can’t help you. You just should render separate verdicts on each Count.” After further deliberation the jury asked: “Can the Judge explain the first Count to us again?” The response was: “. . . I’m sorry, I can’t help you. The answer is no. You will have to go with the Charge and the evidence that you have.”
The jury found defendant guilty on both counts. The court sentenced him on Count 1, the “liquors, drugs” count, and the sentencing form shows that a nolle prosequi order was entered on Count 2 (rightly or wrongly). The peculiarities of this case, that is, the wording of Count 1 and the evidence limited to alcohol intoxication, required an exclusion of subsections (2) and (3) from the jury instruction. “ ‘Where the inapplicable instruction authorizes the jury to reach a finding of guilty by a theory not supported by the evidence of record, we cannot say as a mater of law that the charge was neither confusing nor misleading. (Cit.)’ ” Joiner v. State, 163 Ga. App. 521, 523 (4) (295 SE2d 219) (1982).
The charge, coupled with the wording of Count 1, authorized the jury to find defendant guilty of driving under the influence of drugs or both alcohol (“liquor”) and drugs. This would be reversible except for the fact that the jury also found defendant guilty of subsection (4) involving solely alcohol. This renders the error harmless despite the sentence’s bottoming on Count 1, of which appellant does not complain.