Chief Judge, dissenting.
I agree with the reasoning of the majorty until the conclusion is reached that Ser-ing's conviction under the BAC statute is an "included offense" within the coverage of Ind.Code 35-41-1-16 (1985) [hereinafter cited as the "included offense" statute].
We all agree that each of the crimes charged contains an element that distinguishes it from the other. Specifically, IC 9-11-2-1 (1985) [hereinafter cited as the BAC statute] requires proof of a specific blood alcohol level while IC 9-11-2-2 [hereinafter cited as the DWI statute] requires proof of intoxication, which must include a showing of impairment. Thus, the statutes do not violate the "identity of elements" test of Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. However, the majority then relies upon a portion of the included offense statute to conclude that the legislature did not intend for a defendant to be convicted and punished under both statutes for the same act. The included offense statute provides that:
"'Included offense means an offense thot:
(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 the 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." |
(Emphasis supplied). The majority interprets subsection three of the included offense statute to mean that both the BAC statute and the DWI statute were designed to combat the same harm, the risk to life and property occasioned by the intoxicated driver. Because a driver may not be convicted under the DWI statute unless actual impairment is shown, the conclusion is then reached that the risk of harm resulting from an intoxicated motor vehicle operator is greater than the risk arising from an operator with a BAC level of .10 per cent. Therefore, operating a motor vehicle with a *378blood alcohol level of .10 per cent is a lesser included offense of DWI because the two statutes differ only in the degree of the risk of harm to the public.
Here, however, there is more than a mere difference in the level of harm embraced by the two statutes. They contain different elements and require different proof to sustain a conviction. Although generally directed to combat the harm of punishing motor vehicle operators who consume alcohol, the statutes were designed to punish different types of activity. So they differ in an additional way, other than the degree of risk of harm to the public interest, ie. the degree. of risk of harm to the public is not the only difference between. Therefore, violation of the BAC statute is not a lesser included offense of the DWI statute under IC 35-41-1-16(8).
I would affirm.