dissenting:
The dispositive analysis in this case is whether, for purposes of I.C. § 18-301, Smith could be punished under both the inattentive driving statute, I.C. § 49-1401(3), and the DUI statute, I.C. § 18-8004. I disagree with the majority’s emphasis on the intent and objective of Smith in performing the analysis required under I.C. § 18-301. In State v. McCormick, 100 Idaho 111, 594 P.2d 149 (1979), our Supreme Court explained the approach to be taken in deciding whether certain conduct could be punished as two separate offenses under section 18-301. The Court specifically rejected the rationale of a California case, People v. McFarland, 58 Cal.2d 748, 26 Cal.Rptr. 473, 376 P.2d 449 (1962), in which the California Supreme Court interpreted its state’s analogue to section 18-301 as being dependent upon the intent and objective of the defendant, i.e., if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one. The McCormick court reiterated its adherence to a different approach, one more in keeping with past Idaho decisions. The burglary and rape crimes prosecuted in McCormick did not, the Court observed, have identical components. The burglary was complete when the defendant entered the premises with criminal intent, and the rape was complete when the defendant had intercourse with the victim. The Court held that although both crimes arose out of the same incident, each constituted separate “acts” under I.C. § 18-301.
State v. Major, 111 Idaho 410, 725 P.2d 115 (1986), is cited by the majority for the proposition that the divisibility of a transaction or course of conduct may also turn on the intent and objective of the actor. This statement from Major should be limited in *25application, for the Supreme Court’s opinion in Major noted that the intent and objective of the actor are of particular importance in cases of crimes of possession, which involve knowledge or awareness of control over something rather than an act or omission to act. Smith’s conduct is clearly an “act” rather than a crime of possession; thus, the language of Major should not be controlling here.
The Supreme Court in State v. Sterley, 112 Idaho 1097, 739 P.2d 396 (1987), adopted a timing or sequencing test to determine whether conduct can be deemed a single or multiple act under section 18-301. If the acts comprising one crime are completed before the commission of the second crime, then the two crimes cannot be said to arise from the same act or transaction.
This case presents a more difficult application of the Sterley timing analysis because Smith conditionally pled guilty and there was no trial during which the state presented its theory of the I.C. § 18-8004(l)(a) offense; however, the record shows that the prosecution would have focused on conduct occurring after the completed acts upon which the inattentive driving conviction was based. Smith was charged by citation with the misdemeanor of inattentive driving for the following conduct:
drove within 4 feet of the curb nearly striking parked cars twice. Location: Rayburn N of perimeter.
At the preliminary hearing and at the hearing on the motion to dismiss, the police officer who cited Smith for inattentive driving and who arrested him for DUI testified that he had observed Smith driving in an erratic manner on Rayburn Street. The officer observed Smith on Rayburn Street, then activated his overhead lights. After the officer activated the overhead lights to pull Smith over, Smith signaled for a left-hand turn onto Idaho Street, and the officer testified that for a period of approximately five seconds before the vehicle actually stopped, the officer did not observe any unusual characteristics in Smith’s driving.
The criminal complaint and the criminal information charged Smith with violating I.C. § 18-8004 in the following manner:
That the Defendant, WILLIAM HERMAN SMITH, on or about the 14th day of September, 1989, on Idaho Street, in Moscow ... did feloniously drive or was in actual physical control of a 1972 Mercedes motor vehicle, while under the influence of alcohol ...
The complaint and information charging Smith with felony DUI specified Smith’s conduct on Idaho Street, and mentioned nothing about any driving on Rayburn Street. This is important because, as we stated in State v. Ledbetter, 118 Idaho 8, 14, 794 P.2d 278, 284 (Ct.App.1990), where acts overlap,
[The] overlap could be avoided in a particular case if the two crimes were charged with specific reference to separate acts committed at different times, thus satisfying the “temporal” test under I.C. § 18-301. See State v. Sterley, 112 Idaho 1097, 739 P.2d 396 (1987).
See also State v. Randles, 115 Idaho 611, 768 P.2d 1344 (Ct.App.1989) (rev’d in part at 117 Idaho 344, 787 P.2d 1152 (1990), where the jury instruction limited the definition of “manufacturing” a controlled substance so that the crime was complete when the marijuana was cultivated and harvested. This instruction narrowed types of conduct on which a conviction for manufacturing could be based, but enabled this Court to conclude that a course of conduct was sufficiently separate in character, and clear enough in sequence, to be temporally distinguishable from the conduct supporting a,conviction for possession of a controlled substance with intent to deliver. Randles at 616, 768 P.2d at 1349.
The single incident of Smith’s driving on the night of September 14, 1989, may be analyzed into components that are sufficiently separate in character, and clear enough in sequence, to be temporally distinguishable. The driving conduct which the officer observed on Rayburn Street was inattentive in that at least twice the vehicle came close to the curb and nearly struck parked cars. This conduct was *26charged as misdemeanor inattentive driving, and the offense was completed before the Idaho Street driving occurred. The next act occurred on Idaho Street and consisted of driving which displayed, in the officer’s words, no unusual characteristics, and which also consisted of being in actual physical control of a motor vehicle after the vehicle had stopped. This conduct could properly be charged as DUI, for the DUI offense does not require any particular type of driving, only that a person under the influence be driving or in actual physical control of a motor vehicle. See I.C. § 18-8004(6); State v. Cheney, 116 Idaho 917, 919, 782 P.2d 40, 42 (Ct.App. 1989). When analyzed in this manner, I believe that the incident consisted of several components separated in time which could, without violating I.C. § 18-301, be separately punished.