dissenting.
The question presented is whether it is proper to instruct the jury (and secure conviction) on a violation of IC 9-11-2-1 (the BAC offense) when an accused is' charged by an information which alleges only a violation of IC 9-11-2-2 (the DWI offense).
IC 9-11-2-3, under which Johnson was charged, states that a person who violates either of the foregoing sections commits a class D felony if he has a prior conviction of operating while intoxicated within five years of the date of the instant offense.
I agree with the majority that under the circumstances present here the language of the information fails to allege a BAC violation. The alternative language referring to BAC with the date stricken should be treated as surplusage.
In Sering v. State (1986), Ind.App., 488 N.E.2d 369 the court held that the double jeopardy provision barred conviction and sentence for both the BAC offense and the DWI offense based upon a single set of operative facts. The court reasoned that while the offenses might be distinct under the analysis of Blockberger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (adopted by Indiana in Elmore v. State (1978), 269 Ind. 532, 382 N.E.2d 893) multiple punishment was nevertheless prohibited pursuant to clause three of IC 35-41-1-16. That clause includes within the definition of included offense an offense that.
... differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser *190kind of culpability is required to establish its commission.
The court concluded that the BAC offense was within that definition because the only difference between it and the DWI offense was that the BAC offense involved a less serious risk of harm to the public interest. 488 N.E.2d 375.
I have no quarrel with the Sering analysis. However, the fact that double jeopardy may bar conviction and sentence for both a BAC violation and a DWI violation based on a single incident does not necessarily mean that either the state or the accused is entitled to have the jury instructed on the lesser BAC violation where DWI is charged in the information. See Rouse v. State (1988), Ind.App., 525 N.E.2d 1278 where the court held that it was reversible error to instruct the jury that causing death while guilty of the BAC offense was a lesser included offense of causing death while guilty of the DWI offense.
The key to that determination lies in the due process requirement that a defendant have notice of the charge(s) upon which he may be convicted. See, e.g., Garcia v. State (1982), Ind.App., 433 N.E.2d 1207.
Where the lesser offense in question is a possibly included offense (see Roddy v. State (1979), 182 Ind.App. 156, 394 N.E.2d 1098) then as the majority suggests the dictum of Jones and Sills1 has application. That is to say, if the information omits the necessary factual allegations to adequately allege the lesser offense, then no instruction on that lesser offense should be given.
On the other hand the Jones-Sills dictum can have no rational application where the lesser offense is an inherently included offense. By definition in such instances, charging the greater offense necessarily includes charging the lesser. See Jones, 438 N.E.2d at 974.
Thus, in the case at bar the question becomes whether an offense that is an “included offense” by virtue of the third clause of IC 35-41-1-16, is necessarily such so that it automatically passes the first step inquiry concerning instructions (see, e.g., Lawrence v. State (1978), 268 Ind. 330, 375 N.E.2d 208). If it is merely a possibly included offense, then the information must allege facts sufficient to encompass the lesser offense. Jones, 438 N.E.2d at 975.
Arguably the latter possibly included offense approach might be applied to third clause included offenses. Since the first clause of IC 35-41-1-16 covers offenses traditionally considered inherently included, it might be urged that the third clause was therefore intended to apply to something else. Moreover, as the court noted in Sering a technical Blockberger analysis may well result in the conclusion that each offense requires an element not found in the other.
The result would be to preclude lesser included offense consideration unless the factual allegations of the charge were sufficient to cover all the elements of the lesser offense. See, e.g., Dillon v. State (1983), Ind., 447 N.E.2d 581. We might fairly expect that such a test would not often be met since the prosecutor would be unlikely to allege both a greater and lesser form of either culpability or potential harm in the same count.
Thus, where the evidence was uncertain or the state doubtful of its case, in order to aid effective prosecution the state would be left with the prospect of charging the greater offense in one count and the lesser in a second count. It could then proceed to trial on both offenses, subject of course to the necessity of the court vacating any conviction and sentence on the lesser count if the jury returned a guilty verdict on both counts. Sering, supra.
It seems to me that a more sound approach is to treat a clause three included offense as necessarily included. The inquiry concerning the propriety of an instruction would then shift to the second step of analysis under Lawrence and Rod-dy and their progeny, i.e., is there a ration*191al basis under the evidence upon which the jury might conclude that the lesser offense was committed while the greater offense was not. See, e.g., Jones v. State (1986), Ind., 491 N.E.2d 980.
IC 35-41-1-16 supports this approach. Certainly, the third clause is intended to cover offenses other than those described in the first clause. On the other hand, the statutory intent is clearly to declare the offenses described in all three clauses as included offenses.
By treating the clause three offenses as included and then focusing upon the second step of the two-part test it appears to me that we would bring into harmony both the double jeopardy and instruction aspects of lesser offense law, we would avoid much of the confusion that attends lesser offense analysis, and we would focus more clearly upon the evidentiary considerations that disclose whether an accused or the state are seeking a compromise appeal to sympathy or prejudice rather than a fair determination by the jury. Concerning the defendant’s appeal, see, e.g., Tawney v. State (1982), Ind., 439 N.E.2d 582, concerning the state’s, see, e.g., Beck v. Alabama (1980), 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392.
For these reasons I would uphold the conviction.
I therefore dissent.
. Only one Justice joined the author of the lead opinion in Sills. Two concurred in result and one dissented.