(dissenting).
Initially, it should be noted that the circumstances we are confronted with are unlike the facts in Petersen v. Dep’t of Public Safety, 373 N.W.2d 38 (S.D.1985). Here, appellant Likness was found asleep in the driver’s seat behind the steering wheel with the ignition switch turned on. Since a position in the driver’s seat is a relevant and common element in cases finding actual physical control of a motionless vehicle, State v. Smelter, 36 Wash.App. 439, 443, 674 P.2d 690, 692 (1984), see also Petersen, 373 N.W.2d at 40 n. 2 (Henderson, J., dissenting); and because appellant Likness was therefore in a position from which he could readily drive, I would have no quarrel if Likness was properly brought to trial and tried for being in actual physical control of a vehicle while under the influence of an alcoholic beverage. SDCL 32-23-1(2). However, inasmuch as appellant Likness was not properly brought to trial, tried and convicted, I dissent from the majority opinion herein. Accordingly, I would reverse and remand for a new trial.
SDCL 23A-8-2(4) provides for the dismissal of an information “[w]hen more than one offense is charged in a single count[.]” State v. Myott, 246 N.W.2d 786, 789 (S.D.1976). The controlling statute, not cited by the majority opinion, is SDCL 23A-6-23, which provides:
Two or more offenses may be charged in the same indictment or information in separate counts for each offense, if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. (Emphasis supplied mine.)
Here, in one count, the information charged Likness with driving or being in actual physical control of a vehicle while under the influence of alcohol. Since both allegations address a different factual event constituting a different charge, how was appellant to know which charge the State intended to pursue? Although an information is sufficient if it parrots statutory language, State v. Provost, 266 N.W.2d 96, 99 (S.D.1978), the information cannot parrot disjunctive statutory language which relates to more than one offense, State v. Rodriguez, 347 N.W.2d 582, 583 (S.D.1984). SDCL 32-23-1 does contain two offenses.
The first offense prohibited by SDCL 32-23-1, as relevant herein, is driving while under the influence. The second offense is being in actual physical control of a vehicle while under the influence. These are separate offenses with a differing element of proof. A person can obviously be in actual physical control of a vehicle without ever having driven it, but a conviction for driving under the influence demands an additional element of proof, to wit, the act of driving the vehicle. Thus, since evidence of actual physical control cannot support a conviction for driving while under the influence, I would hold that the first offense contained within SDCL 32-23-1, the offense of driving while under the influence, must be separately charged in the information. This was not done in the case at bar; it prejudiced appellant’s substantial rights, see SDCL 23A-6-14; appellant properly objected thereto; and under State v. Lachowitzer, 314 N.W.2d 307, 309 (S.D.1982), and SDCL 23A-8-3(3), this case requires reversal and a new trial.
Where is the prejudice to appellant? His substantial rights are prejudiced and result from the information’s inadequate apprisal of the particular SDCL 32-23-1 offense for which appellant was to prepare and present his defense, and so, later, a judgment could be interposed as a bar to a subsequent prosecution for the same offense. State v. Sinnott, 72 S.D. 100, 104, 30 N.W.2d 455, 456 (1947), cert. denied, 334 U.S. 844, 68 S.Ct. 1512, 92 L.Ed. 1768 (1948). See also, State v. Belt, 79 S.D. 324, 334-35, 111 N.W.2d 588, 593 (1961). Additionally, the State and the trial court unwittingly took advantage of this appellant. Cumulative evidence on both SDCL 32-23-1 offenses was presented at trial which could have *46confused the jury; further, the jury was provided with a verdict form for the driving offense only. Thus, the jury was allowed to convict appellant Likness for driving while under the influence even if they did not conclude that he drove the vehicle. Such criminal pleading was a hodgepodge which permitted a jury to pin one of two tails on the donkey. He was to feel the “ouch” in either event and was precluded from setting up at Bar, double jeopardy in the future. Reasons exist for the rule which forbids charging more than one crime in a single count of either an indictment or information. These reasons are:
(1) To assure that the person charged is sufficiently notified of the charge;
(2) To protect that person so charged against double jeopardy;
(3) To avoid prejudice and confusion which would naturally arise as evi-dentiary rulings are required during trial;
(4) To assure that the person charged is sentenced only for the crime charged; and, lastly,
(5) To guarantee jury unanimity.
The above is supported by United States v. Alsobrook, 620 F.2d 139 (6th Cir.1980), cert. denied, 449 U.S. 843, 101 S.Ct. 124, 66 L.Ed.2d 51 (1980); United States v. Pavloski, 574 F.2d 933 (7th Cir.1978); United States v. Starks, 515 F.2d 112 (3rd Cir.1975); and State v. Lomagro, 113 Wis.2d 582, 335 N.W.2d 583 (1983).
This decision, in my opinion, is opposed to specific statutes, the settled law of this state, and the above-quoted decisions. Accordingly, I dissent.