(dissenting) — Instruction 9 correctly defines the alternate means of committing the crime of driving while under the influence of liquor (DWI). I agree with the majority that the concluding part of the instruction, which tells the jury its determination may be based on either alternative and need not be unanimous, is error. However, taking the instructions as a whole and in context, I do not believe there is any possibility the jury could have been prejudicially confused. Therefore, I would hold the error was harmless and affirm.
Instruction 9, which contains two alternatives, was immediately followed by instruction 10,2 which specifies the ele*691ments that must be proved to convict the appellant. Instruction 10 limits the jury to a single alternative and requires proof of that alternative beyond a reasonable doubt. In addition, instruction 163 defines the alternative presented to the jury in instruction 10; it tells the jury what is meant by "under the influence of or affected by the use of intoxicating liquor". The instructions given and the jury's verdict plainly show the jury must have been unanimous as to the alterna*692tive means which the majority concedes was supported by sufficient evidence; therefore, we may conclude confidently that the erroneous instruction in no way affected the outcome. State v. Bonds, 98 Wn.2d 1, 18, 653 P.2d 1024 (1982), cert. denied, 464 U.S. 831 (1983). The error was harmless and not prejudicial to the substantial rights of the appellant. State v. Savage, 94 Wn.2d 569, 578, 618 P.2d 82 (1980).
The circumstances of this case distinguish it from State v. Maupin, 63 Wn. App. 887, 822 P.2d 355, review denied, 119 Wn.2d 1003 (1992) and State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980), upon which Maupin relies. In both Maupin and Green, the "to convict" or "elements" instructions contained two alternative ways in which the charged offense could be committed. In those cases, the instructions did not take away the choice between the two alternatives, but specifically presented it to the jury.
I also believe any impropriety in the prosecutor's argument was harmless. The prosecutor based his argument on instructions 10 and 16, and never mentioned the other alternative contained in instruction 9. Defense counsel stressed the fact that no breath alcohol or field sobriety tests were administered to Mr. Martin and argued that the evidence was insufficient to establish Mr. Martin was under the influence of alcohol. Counsel suggested the arresting officer fabricated the intoxication allegation to cover her failure to control her K-9. dog.
In rebuttal, the prosecutor sought to explain the absence of tests, making the argument quoted in the majority opinion at page 690. I would continue the quotation, adding the prosecutor's next paragraph:
We don't have a BAC here, we don't know what Mr. Martin would have blown, but the deputy said he was obviously intoxicated. And, sure, they've got a field sobriety test, but they give that when the person has a — who is not obviously intoxicated. He was obviously intoxicated.
The majority opinion at page 690 states "there is no breath alcohol test evidence, nor explanation why not." That is not altogether correct. The deputy explained she turned Mr. *693Martin over to tribal police, then responded to two other calls before she saw Mr. Martin again some hours later. In any event, breath alcohol test evidence is not required for a DWI conviction. Even if the argument were improper, reversal is appropriate only if there is a substantial likelihood that the prosecutor's misconduct affected the jury. State v. Wheeler, 95 Wn.2d 799, 807, 631 P.2d 376 (1981). Mr. Martin has not shown a substantial likelihood that the jury was affected.
I would affirm the conviction.
Instruction 10 reads:
"To convict the defendant of Driving While Under the Influence of Intoxicating Liquor, in Count II, each of the following elements of the crime must be proved beyond a reasonable doubt:
*691"(1) That on or about the 9th day of June, 1991, the defendant drove a motor vehicle;
"(2) That at that time, the defendant was under the influence of or affected by intoxicating liquor; and
"(3) That the acts occurred in Yakima County, Washington.
"If you find from the evidence that elements (1), (2) and (3) have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
"On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty."
Instruction 16 reads:
"It is provided by the statutes of this state that it is unlawful for any person who is under the influence of or affected by the use of intoxicating liquor to drive any vehicle.
"The manner in which a vehicle is being operated does not itself establish that the driver of the vehicle either is or is not under the influence of or affected by intoxicating liquor.
"However, the manner in which the vehicle is being operated is a factor to be considered in light of all the proved surrounding circumstances in deciding whether the person operating the vehicle was or was not under the influence of or affected by intoxicating liquor. A person may drive an automobile in an apparently normal fashion and still be under the influence of or affected by intoxicating liquor; on the other hand, a person may drive a vehicle in an improper or erratic manner and not be under the influence of or affected by intoxicating liquor.
"Regarding the matter of being under the influence of liquor, the law recognizes that a person may have drunk liquor and not yet have reached the point at which that person may be said to be influenced by it when that person drives a vehicle; on the other hand, however, it is not necessary that the person be drunk or intoxicated in the sense that such terms are commonly used in order to be under the influence of the liquor.
"A person is under the influence of liquor when as a result of the consumption thereof, that person's ability to operate a vehicle is lessened to an appreciable degree. The phrase 'to an appreciable degree' means to any degree capable of being perceived or recognized by the senses. The question as to whether or not the driver of a vehicle is influenced by or affected by intoxicating liquor is one solely for the jury to determine from the evidence."