dissenting:
I dissent to the overruling of Jackson v. State, 554 P.2d 39 (Okl.Cr.1976).
There are two penal statutes dealing with the effects of alcohol on motor vehicle operators. Laws 1978, ch. 108, § 1, now 47 O.S.Supp.1980, § 11-902 prohibits driving while under the influence of intoxicating liquor. Laws 1978, ch. 109, § 1, now 47 O.S.Supp.1980, § 761, prohibits driving while one’s ability is impaired by the consumption of alcohol. The punishment for driving while impaired is less than the punishment for driving under the influence. A common-sense analysis suggests that driving while impaired is a lesser included offense of driving under the influence; that the issue which separates the two crimes is the question of how much the operator was affected by the alcohol consumed. And, a correct legal analysis leads to the same result.
Laws 1972, ch. 192, § 1, now 47 O.S.Supp. 1980, § 756, pertains to both driving under the influence and driving while impaired. The history of the legislation shows the connection. Section 11-902, supra, was first passed in 19611 as a part of the Highway Safety Code. In 1967 the State Legislature passed an act providing for blood-alcohol tests.2 The test results were ranged as follows: A test result showing a blood-alcohol level of 0.05% or lower was prima facie evidence that the person was not under the influence of alcohol. A result of 0.15% or higher was prima facie evidence that the person was under the influence. And, a result greater than 0.05% but less than 0.15% was relevant evidence of how the person was affected, but would not establish a prima facie case either way. Title 47 O.S.1971, § 756.
In 1972, the Legislature passed another act pertaining to this area.3 It had the following title:
An Act relating to Motor Vehicles;
amending 47 O.S.1971, § 756; providing that in a trial of criminal actions the results of chemical tests will be relevant evidence of whether a person was operating a motor vehicle while his ability was impaired OR while under the influence of alcohol; providing that it is unlawful to operate a motor vehicle while a person’s ability is impaired by the consumption of alcohol; providing for penalty and suspension of driver’s license; providing such violation shall not be bondable. (emphasis added)
The second section of this Act provided punishments for the offense of driving while impaired. The first section made certain changes in the provisions for blood test results: A result of 0.05% or lower is still prima facie evidence that the person is not under the influence. A result of 0.10% (down from 0.15%) or higher is still prima *1252facie evidence that the person is under the influence. Finally, a result in between is still relevant evidence of how the person is affected. But now, instead of being relevant evidence of whether the person is under the influence, it is relevant evidence of the new offense of operating a motor vehicle while impaired.
And the Legislature has added the language upon which the majority opinion seizes:
. . . however, no person shall be convicted of the offense of operating a motor vehicle while his ability to operate such vehicle is impaired by consumption of alcohol or intoxicating liquor solely because there was more than five-hundredths (5/ioo) of one percent (1%) by weight of alcohol in the person’s blood in the absence of additional evidence that such person’s driving was affected by said consumption of alcohol to the extent that the public health and safety was threatened or that said person had violated a state statute or local ordinance in the operation of a motor vehicle: . . .
I do not read this language as requiring an additional element of proof for the offense of driving while impaired. I believe the elements of both driving while impaired and driving under the influence are that the person was (1) operating a motor vehicle, (2) on a public street, highway or parking lot, (3) while affected by alcohol.4 The difference between the two offenses is the extent to which the person was affected.
When the cited language of Section 756 is read in the light of the legislative history and the title of the Act, it is clear that the Legislature was emphasizing that the blood-alcohol level alone would not establish a prima facie case of driving while impaired. In cases involving drinking while driving, the burden on the State is to establish that the accused was affected by alcohol. The Legislature has provided that if the blood-alcohol level is sufficiently high, the State can merely present the test re-suits and rest. And, the Legislature has provided that for a lower level of blood-alcohol, the State must present additional evidence before it can rest.
The erroneous ruling of law made by the majority seems to stem from the mistaken premise that chemical tests are the only way by which the level of intoxication can be proved. Title 47 O.S.1971, § 757, makes clear that any competent bearing on the question may be introduced. Compare England v. State, 560 P.2d 216 (Okl.Cr.1977); Stanfield v. State, 576 P.2d 772 (Okl. Cr.1978), and Harris v. The City of Tulsa, 589 P.2d 1082 (Okl.Cr.1979). All of these people were convicted of driving while under the influence without any evidence of blood-alcohol tests.
Driving while impaired is a lesser included offense of driving under the influence. Jackson v. State, supra, so holds, and it should not be overruled.
.Laws 1961, p. 386, § 11-902. The section also prohibits driving while under the influence of drugs, but that area of the statute is not relevant to the present case.
. Laws 1967, ch. 86, codified as 47 O.S.1971, §§ 751-760.
. Laws 1972, ch. 192, now 47 O.S.Supp.1980, §§ 756 and 761.
. Title 47 O.S.Supp.1980, §§ 11-101 and 11-902. Compare Williams v. State, 372 P.2d 237 (Okl.Cr.1962) (ruling on an earlier statute).