dissenting.
I dissent and would reverse the judgment of the trial court because there is insufficient evidence to support either defendant’s conviction of criminal recklessness or leaving the scene of an accident.
First, there is insufficient evidence that defendant recklessly operated his vehicle. The majority, in its construction of the recklessness requirement of IC 35-42-2-2(b) holds that intoxication is sufficient, in and of itself, to prove recklessness. Our courts have long held, however, that proof of recklessness, a conscious disregard for the safety of others, requires evidence of driving in a dangerous manner in addition to evidence of driving while intoxicated. DeVaney v. State, (1972) 259 Ind. 483, 288 N.E.2d 732; Broderick v. State, (1967) 249 Ind. 476, 231 N.E.2d 526; Johnson v. State, (1975) 164 Ind.App. 12, 326 N.E.2d 637. The majority correctly states that intoxication is a factor — part of the transaction of reckless driving. The act of dangerously operating the vehicle, however, not drinking intoxicants, is the basic causative element of the crime. The absence of evidence that defendant drove dangerously is the crucial difference between this case and DeVaney, Broderick, etc. In Broderick, where the reckless homicide conviction was affirmed, there was evidence, aside from the happening of an accident and the drinking of intoxicants, that the defendant could not in fact safely control his vehicle — he repeatedly swerved across the center line. In DeVaney and Johnson, where such evidence was absent, the reckless homicide convictions were reversed for insufficient evidence of recklessness. Here, there is no evidence that defendant was driving in a *124dangerous or erratic manner. Thus, the conviction cannot stand.
The majority, to avoid the clear directive of DeVaney and its progeny, seizes upon a distinction without substance. When our Supreme Court wrote DeVaney, the offenses of reckless homicide with a motor vehicle, codified as IC 9 — 4-l-54(a), and causing the death of another while driving under the influence of intoxicating liquors, codified as IC 9-4-l-54(b)(l), were contained in the same statute. In enacting the 1977 Criminal Code, the legislature separated the two offenses, recodifying reckless homicide with a motor vehicle under IC 35-42-1-5. For some reason, the majority concludes that because the two offenses are no longer found in the same statute, the legislature intended to alter or lessen the acts necessary to prove the elements of recklessness. I believe a strong tenet of statutory construction is that statutes relating to the same subject matter are to be construed together so as to harmonize and give effect to each, because they are in pari materia. State ex rel. Schuerman v. Ripley County Council, (1979) Ind.App., 395 N.E.2d 867. In re-enacting reckless homicide, it is presumed that the legislature, even though removing it from IC 9 — 4-1-54, intended the statute to be given the same construction as previously given. State ex rel. Moore v. Smock, (1973) 156 Ind.App. 158, 295 N.E.2d 857. A criminal statute, construed strictly against the state, will not be enlarged by implication or intendment beyond the fair meaning of the language used and will not be held to include offenses or persons other than those clearly described and provided for. Hutcherson v. State, (1978) Ind.App., 382 N.E.2d 983. It thus remains clear to me that the legislature “intended to provide for two distinct crimes and that reckless homicide require[s] something more than causing the death of another while driving under the influence.” DeVaney v. State, (1972) 259 Ind. at 493-494, 288 N.E.2d 732.
The legislature in 1977 created the new offense of criminal recklessness, IC 35-42-2-2. Criminal recklessness, requiring proof that defendant (1) recklessly, knowingly or intentionally (2) inflicted serious bodily injury (3) upon another person, satisfies the definition of an included offense of reckless homicide, IC 35-41-1-2.1 The same culpability, “recklessly” is required, the offense of recklessness differs only from reckless homicide in that a less serious harm need be proved. Because the same culpability, recklessness is required for either offense, De-Vaney and the other cases defining the acts necessary to show recklessness serve as perfect guideposts for review of a conviction for recklessness. Those cases unerringly demonstrate that to sustain a conviction for recklessness, evidence must be present that defendant was driving in a dangerous manner prior to the accident. The majority would hold that a .37 blood alcohol level is sufficient proof of recklessness. Given the imprecision of blood alcohol tests and the variations among individual capacity levels, I hesitate to rest a finding of recklessness on a blood alcohol test alone. The majority’s construction of IC 35-42-2-2 is one which I cannot accept.
I also find insufficient evidence that defendant was the operator of the vehicle involved in the accident. The defendant Williams was discovered sitting in his pickup truck alongside State Highway 36 in Putnam County thirteen or fourteen miles west of the scene of an accident which occurred in Hendricks County. The only evidence in the record which would indicate that Williams operated his truck in Hendricks County is the following examination of Jerry Clinger, Town Marshall of Bain-bridge:
*125Q: Did he make statements to you?
A: Yes.
Q: What did he say?
A: I asked him if that was his pickup truck and he stated to me that yes, it was. I also asked him where he had been that day. He told me he had been ... He had been moving furniture or something from Tipton. That’s all he said.
Q: Did he admit that he had been driving the truck?
A: Yes.
Q: Did he indicate that he had been in Indianapolis?
A: Yes, he did.
Q: Did he indicate that he had driven from Indianapolis to the location where you found him?
A: He admitted driving, however, he didn’t know where he was at.
U. S. Highway 36 extends from the City of Indianapolis in a general east-west direction through Hendricks and Putnam Counties. Had the witness responded affirmatively to the last question posed to him, the evidence would have been sufficient to place Williams at the scene of the accident in Hendricks County operating his truck. He did not. There simply is no evidence that Williams was the operator of the truck at the time of the accident and none from which the trier of fact could reasonably infer that he was the operator. He was found drunk in the truck two and one-half hours after the accident thirteen or fourteen miles away.
I disagree with the majority’s statement that Williams “drove past the scene of the accident on Highway 36 on the day in question and within the time frame of the accident.” The record fails to substantiate that statement. There is no evidence putting Williams at the scene. In fact, there is no evidence in the record that he was there “within the time frame of the accident”, again, the only evidence is that he was found in his truck thirteen or fourteen miles away two and one-half hours after the accident. Because I find insufficient evidence that defendant was the operator of the vehicle, I would reverse both the recklessness conviction and the conviction for leaving the scene of the accident.
I would also disagree with the majority where they find that Williams was adequately advised of his rights in a manner in which those rights could be understood and that Williams knowingly and intelligently waived those rights. Only Clinger testified on this matter not “both officers” as indicated by the majority. (119, 415 N.E.2d 118) Webber, who arrived at the Williams truck after Clinger, found Williams was in Clinger’s patrol car. Clinger responded to a dispatch regarding a pickup truck west of Morton with a person passed out inside. Upon his arrival, he observed a white over red Chevy pickup truck parked and facing east on 36, three quarters of a mile from Morton in Putnam County. He identified Williams as the same person in the truck. Clinger states that Williams was passed out. Clinger opened the truck door and tried to wake him up. “I finally got him awake and asked him to step out of the truck. I had to help him out. At that point I took him back and placed him in the back seat of my patrol car.”
Q: Did you advise him of his rights?
A: Yes sir, I did.
Q: Did he make any statements to you?
It is antinomical that the majority characterizes Williams condition as “highly intoxicated”, “extreme intoxication”, and so “heavily intoxicated that he could not see clearly, judge or react, or drive safely” and finds him reckless as a matter of law but, at the same time, allows the trial court to find Williams understood his constitutional rights and knowingly and intelligently waived those rights. Clinger took about two minutes to bring Williams to consciousness by shaking him. Williams was unable to walk without help. Three or four minutes elapsed before questions were posed to him. From this evidence, I cannot accept the majority’s finding that Williams understood and knowingly waived his rights.
. IC 35-41-1-2(2) defines included offense:
“Included offense” means an offense that:
(1)is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged;
(2) consists of an attempt to commit the offense charged or an offense otherwise included therein; or
(3) differs from the offense charged only in respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission.