concurring in part and dissenting in part
The majority affirms the conviction for causing death by operating a motor vehicle while intoxicated, but in consideration of double jeopardy prohibitions, orders the trial court to vacate the conviction for causing death by operating a motor vehicle with a BAC of at least .10 percent. I would do precisely the reverse and would affirm the BAC — death conviction and order the driving while intoxicated conviction vacated.
Our cases concerning employment of an alcohol blood test result as prima facie evidence of intoxication are not in harmony. In Warner v. State (1986) Ind.App., 497 N.E.2d 259, a panel of this court held that notwithstanding a statute to that effect, then codified as I.C. 9-11-1-7 (Repealed by P.L. 2-1991, SEC.109) and now carried as I.C. 9-13-2-131 (Burns Code Ed. Supp.1999), a conviction for driving while intoxicated could not be based solely *854upon a blood test result of more than .10 percent. Subsequently, however, a majority of a different panel disapproved of the Warner holding and affirmed a conviction for driving while intoxicated. Clark v. State (1987) Ind.App., 512 N.E.2d 223. It should be noted, however, that in addition to the blood test result and the fact that Clark had run his car off a rain slick road into the mud, he not only smelled of alcohol but failed all four of the field dexterity tests administered. In Liquori v. State (1989) Ind.App., 544 N.E.2d 199, we held on facts similar to those present in Clark that the driving while intoxicated conviction was sustained by the evidence.
In the case before us, although Minix admitted having consumed alcohol and his demeanor was consistent with that admission, there were no field dexterity tests or other field tests administered. There was no evidence other than the subsequent blood alcohol test, to reflect that his consumption of alcohol had resulted in impairment. The fact that he drove off the curved road may have been solely attributable to his rate of speed. In these regards, the facts before us are much less convincing than those in Clark and Liquori. For this reason, and rather than relying solely upon the blood alcohol test, pursuant to I.C. 9-13-2-131, I would decline to follow Geyer v. State (1988) Ind.App., 531 N.E.2d 235, trans. denied, and Boyd v. State (1988) Ind.App., 519 N.E.2d 182, which affirm driving while intoxicated convictions on much less convincing evidence than was present in Clark and Liquori. I find it preferable to affirm the BAC conviction as a separate and distinct crime from that of driving while intoxicated. Warner, supra.