concurring.
The question of whether reckless driving is a lesser-included offense of driving while intoxicated (DWI) is perplexing. Driving while intoxicated involves driving while impaired by the consumption of alcohol.1 To show impairment, the prosecution need not demonstrate that the defendant drove recklessly in any way other than inappropriately consuming alcohol and driving. The fact that the defendant caused an accident, ran a red light, or otherwise drove in a reckless manner may be evidence that the defendant was impaired, but such instances are not necessary in order to sustain a DWI conviction. Thus, it was possible for the *118jury to have concluded in this case that the defendant was guilty of DWI, but not guilty of causing the accident in which he was involved. In order words, the defendant’s driving, aside from his intoxication, may have been perfect.
Examined one way, reckless driving may be seen as a different kind of offense than DWI. Reckless driving involves such things as running red lights, speeding, and causing accidents. It involves bad and heedless driving. It is therefore a much broader category of reckless behavior.
Driving while intoxicated, on the other hand, does not necessarily involve physical acts which constitute bad driving. Primarily, DWI involves driving while impaired by alcohol. Seen in this way, reckless driving is not a lesser-included offense of driving while intoxicated. The offenses involve very different kinds of recklessness, and the defendant can be viewed as committing two separate reckless acts.
There is, of course, another way to look at these offenses. A person who drives in traffic while intoxicated can certainly be said to be driving recklessly, and the majority opinion argues that the appellate courts of this state have so held.2 It may not make much sense to try to separate the recklessness involved in DWI from other acts which could constitute reckless driving which led to an accident. Thus, viewed in this fashion, under the cognate approach, reckless driving can be a lesser-included offense of driving while intoxicated. See Elisovsky v. State, 592 P.2d 1221, 1225-26 (Alaska 1979) (careless use of firearms may be a lesser-included offense of assault with a dangerous weapon under the cognate approach even though the assault with a dangerous weapon statute reaches many kinds of assaults which would not constitute careless use of firearms).
The Alaska Supreme Court has required instruction on lesser-included offenses where the defendant requests an instruction. Id. at 1226. The policy is to allow the jury to convict on a lesser offense rather than forcing the jury to choose between convicting the defendant of the greater offense or acquitting the defendant altogether. In the instant case, Comeau wanted to give the jury the option of finding him not guilty of DWI, but finding him guilty of reckless driving in causing the accident. It seems to me that he should have had this right. If the jurors in this case felt that Comeau had recklessly caused the accident, they might have been more reluctant to acquit him of DWI if they felt that in doing so they had to acquit him altogether, rather than having the option to convict him of reckless driving alone. By allowing Comeau a lesser-included offense in this case, we give the defendant every opportunity to prevail if he can establish a reasonable doubt as to his guilt of DWI. Accordingly, I join in the decision to reverse this case.3
. This case was tried on the theory that Comeau drove while he was “under the influence of intoxicating liquor.” AS 28.35.030(a)(1). A person may also be convicted of DWI if he drives with a blood alcohol level of .10 or greater. AS 28.35.030(a)(2). This latter theory represents a legislative determination that a person driving with that blood alcohol level is driving a motor vehicle while intoxicated and the state does not have to prove actual impairment in order to obtain a conviction.
. By asking for the lesser-included instruction on reckless driving, the defendant was conceding that if he was guilty of DWI, then he was guilty of reckless driving as well.
. Our decision in this case only applies to cases where the defendant is charged with driving under the influence of intoxicating liquor. AS 28.33.030(a)(1). It seems to me, however, that if our decision is correct that reckless driving is a lesser-included offense of DWI under AS 28.-35.030(a)(1), then reckless driving may also be a lesser-included offense under AS 28.35.030(a)(2) (driving with a blood alcohol reading of .10 or higher). It can be argued that the legislature has concluded that a person driving with a blood alcohol level of .10 or higher is "impaired.” Therefore, AS 28.35.030(a)(1) and AS 28.35.030(a)(2) are the same offense. As a result, I would encourage trial courts to give an instruction on reckless driving when it is requested in DWI cases, and when it would be rational for the jury to acquit on driving while intoxicated but convict on reckless driving. That appears to me to be the safest, least complicated, and fairest course of action until this issue is ultimately resolved.