dissenting.
Comeau was prosecuted for driving while intoxicated on a single theory, that his driving was impaired by the consumption of alcohol. Consequently, this case will have little effect as a precedent.1 Nevertheless, *119it seems to me that even in this peculiar case, reckless driving is not a lesser-included offense of driving while intoxicated. The majority’s decision resurrects the related offense doctrine rejected in State v. Minano, 710 P.2d 1013, 1016 (Alaska 1985). Its conclusions are therefore problematic. I am fortified in this belief by the fact that every jurisdiction that has considered the issue has held that reckless driving is not a lesser-included offense of driving while intoxicated. See, e.g., State v. Mourning, 233 Kan. 678, 664 P.2d 857 (1983); Ratliff v. Commonwealth, 719 S.W.2d 445 (Ky.App.1986); State v. Redfearn, 504 So.2d 1005 (La.App.1987); State v. Fennell, 263 S.C. 216, 209 S.E.2d 433 (1974); City of Bellevue v. Redlack, 40 Wash.App. 689, 700 P.2d 363 (1985); People v. Schumacher, 194 Cal.App.2d 335, 14 Cal.Rptr. 924 (1961). See also Annotation: Reckless Driving as Lesser Included Offense of Driving While Intoxicated or Similar Charge, 10 ALR 4th 1252 (1981 & Supp.1987).2
An offense is necessarily included in the charged offense if it is impossible to commit the offense charged without also committing the lesser offense. Giles v. United States, 144 F.2d 860, 861 (9th Cir.1944); Elisovsky v. State, 592 P.2d 1221, 1225-26 (Alaska 1979); Christie v. State, 580 P.2d 310, 316-20 (Alaska 1978); Jennings v. State, 404 P.2d 652, 655 (Alaska 1965). There must also be an element which distinguishes the greater from the lesser offense that is in serious dispute between the parties so that a jury acting rationally could convict the defendant of the lesser offense but acquit of the greater offense. Norbert v. State, 718 P.2d 160 (Alaska App.1986). In other words, the two offenses must have common elements and at least one distinguishing element which is actually disputed by the parties.
As the supreme court held in Minano:
Criminal Rule 31(c) allows the jury to find a defendant guilty of a lesser offense if all of the elements of the offense charged are not proven. However, the rule requires that the lesser offense must be one “necessarily included in the offense charged.” Whether the lesser offense is necessarily included is to be viewed from the perspective of the facts charged in the indictment, in light of the evidence actually presented.
710 P.2d at 1016 (citations omitted).3
If the grand jury, and later the trial jury, must find all of the elements of one offense plus something more in order to convict the *120defendant of the charged offense, then the former is a “lesser” offense and the latter a “greater.” To comply with Criminal Rule 31(c), the jury must be required to actually consider and decide the uncharged offense for it to be a “lesser” offense.4 The cognate theory does not change this requirement, it merely shifts the focus from the elements contained in the statutes being compared to the elements which the state has undertaken to prove in its charging document and to support with evidence at trial. Under the cognate approach, the jury must be required to find the elements necessary for conviction of the lesser offense in order to convict the defendant of the greater offense under the theory pursued by the state at trial. To see how this works in practice, it is useful to examine the seminal cognate theory cases: Paterno v. Lyons, 334 U.S. 314, 320-22, 68 S.Ct. 1044, 1047-48, 92 L.Ed. 1409 (1948), United States v. Whitaker, 447 F.2d 314, 319 (D.C.Cir.1971), and Elisovsky v. State, 592 P.2d at 1225-26.
In Paterno, the defendant was indicted for “buying, receiving, concealing, and withholding property knowing it to be stolen.” He was permitted to plead to attempted larceny on the theory that he attempted to intentionally deprive another of property by withholding it. Paterno later challenged his conviction arguing that attempted larceny was not a lesser-included offense of concealing stolen property, apparently on the theory that the indictment did not inform him of the lesser charge. 334 U.S. at 320-22, 68 S.Ct. at 1047-48. The court looked to the theory under which Paterno was prosecuted and concluded, in effect, that he could not have been convicted of the elements of the charged offense without being found guilty of the elements of the offense to which he pled.
In Whitaker, the defendant was charged with burglary on the theory that he unlawfully entered a building with the intent to steal. His request for a lesser-included offense instruction on unlawful entry was denied on the theory that it was theoretically possible to be convicted of burglary without being guilty of unlawful entry, i.e., on a theory of trespass ab initio. The court reversed, adopting the “cognate theory” and holding that Whitaker had been indicted on the theory of unlawful entry, not trespass ab initio. The court stressed that “the ‘trier of fact necessarily found every fact [i.e., every element] required for conviction’ of the lesser-included offense” when it found the greater. 447 F.2d at 322. The court cautioned, however:
[Defendant is entitled to invoke Rule 31(c) when a lesser offense is established by the evidence adduced at trial in proof of the greater offense, with the caveat that there must also be an “inherent” relationship between the greater and lesser offenses, i.e., they must relate to the protection of the same interests, and must be so related that in the general nature of these crimes, though not necessarily invariably, proof of the lesser offense is necessarily presented as part of the showing of the commission of the *121greater offense. This latter stipulation is prudently required to foreclose a tendency which might otherwise develop towards misuse by the defense of such rule. In the absence of such restraint defense counsel might be tempted to press the jury for leniency by requesting lesser included offense instructions on every lesser crime that could arguably be made out from any evidence that happened to be introduced at trial. “An element of the mercy-dispensing power is doubtless inherent in the jury system, and may well be a reason why a defendant seeks a lesser included offense instruction, but it is not by itself a permissible basis to justify such an instruction.”
447 F.2d at 319 (footnotes omitted).
In Elisovsky, the defendant was charged with assault with a dangerous weapon on the theory that he threatened a police officer with a rifle. He was denied a lesser-included offense instruction on careless use of firearms because it was theoretically possible to assault someone with a dangerous weapon that was not a firearm. Noting that Elisovsky was prosecuted on the theory that he used a firearm, the court reversed. 592 P.2d at 1226.
These three cases point out the distinction between the cognate theory and the statutory elements theory of lesser-included offenses. If the greater offense may be committed in a number of ways, some but not all of which, have elements common to the lesser offense, a lesser-included offense instruction is not required under the statutory elements theory. In contrast, an instruction may be warranted under the cognate theory if under the theory of the prosecution it is impossible for the jury to convict of the greater offense without finding all of the elements necessary for conviction of the lesser.5
When the evidence used to prove the greater offense would permit, but not require, a finding of the elements necessary to convict of the lesser offense, neither the cognate theory nor the statutory elements theory requires a lesser-offense instruction. To prevail in such a case, the defendant must persuade the court to adopt the related offense theory. See People v. Geiger, 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303, 1315-16 (1984).
Viewed in this light, it should be clear that in this case the theory of the prosecution did not require the jury to expressly find that Comeau drove recklessly, i.e., the jury was not instructed that it had to find that Comeau actually created a substantial and unjustifiable risk of injury to others in order to convict him of driving while intoxicated. In order to convict Comeau of reck*122less driving, the jury would have to make this finding. See AS 28.35.040.
In contrast, AS 28.35.030(a)(1) prohibits, inter alia operating or driving a motor vehicle while under the influence of intoxicating liquor. There is no mention in AS 28.35.030(a)(1) of any risk of injury to others. The phrase “driving under the influence of intoxicating liquor” is not further defined in the statute. In this case, the trial court elected to go beyond the express language of the statute and told the jury “when [a person] has consumed alcohol to such an extent as to impair his ability to operate a motor vehicle ... [and the alcohol consumed] adversely affected and noticeably impaired his actions ... and deprived him of that clearness of intellect and control of himself which he would otherwise have possessed,” he is driving under the influence. Assuming that this gloss is accurate, and that the jury was required to make this finding in order to convict Co-meau of DWI, the instruction still does not include a necessary element of statutory recklessness that the defendant “actually created a substantial and unjustifiable risk of injury to others.” Thus, the jury in this case could have properly convicted Comeau of DWI without making the express finding required to convict him of reckless or negligent driving. Consequently, under the court’s instruction explaining what the state had to prove under its theory of the case, neither reckless driving nor negligent driving were lesser-included offenses of DWI.6 Consequently, Comeau was not entitled to instructions on reckless and negligent driving.
There are additional problems with the majority’s analysis. It seems clear that a jury would not be acting irrationally if it concluded that Comeau had consumed alcohol to the extent that his ability to operate a motor vehicle was sufficiently impaired without necessarily finding that he drove a motor vehicle in such a way as to create a substantial and unjustifiable risk of harm to a specific person or to specific property. It is important to stress that the impairment required for driving under the influence is not of any particular degree. So long as the driver’s ability to operate his vehicle is affected in any way, he is guilty of driving under the influence. See State v. Myers, 88 N.M. 16, 536 P.2d 280, 283 (1975). The majority confuses a prima facie case with the necessary jury finding required to establish a greater and lesser offense relationship under the cognate theory. It is probably true that a jury could always infer reckless or negligent driving from intoxicated driving so that a directed judgment of acquittal would be inappropriate. Nevertheless, the jury is not required to make such an inference and would not be acting irrationally if it refused to do so in the absence of evidence that the specific level of intoxication caused the defendant to present a substantial and unjustifiable risk to other drivers. The legislature has not defined reckless driving to include intoxicated driving or cross-referenced the two statutes in any way. Although the majority concludes that a jury should *123equate drunken driving with reckless driving, there is no statutory compulsion that it do so.7
The analysis in the majority opinion suffers another logical flaw. As we have seen, a greater and a lesser offense must have common elements and at least one controverted distinguishing element. Arguably, reckless driving is the common element and intoxication is the distinguishing element between driving while intoxicated and reckless driving. But according to the majority opinion, driving under the influence, i.e., driving impaired by alcohol, is both the common element and the distinguishing element. If the jury must find intoxication causing impaired driving in order to find reckless driving, then that element cannot distinguish between the two offenses. See Kalmakoff. 715 P.2d at 263. Alternatively, if the jury must find “reckless driving” independent of intoxication to convict of the lesser offense, then that element is not common to the two offenses because the jury need not find recklessness plus intoxication to have convicted Comeau of driving while intoxicated.8
Finally, I do not believe that there was sufficient evidence of reckless driving apart from intoxication to go to the jury on that offense. The majority opinion correctly states that the state used evidence of the accident plus evidence of the intoxication to prove impaired driving. It would not appear that the accident alone would have sustained a finding of recklessness as opposed to simple negligence. A fortiori, it would not appear that a jury could convict of reckless driving if it ignored both the intoxication and the accident.
Under the facts of this case, driving under the influence and reckless driving are related offenses, not a greater and a lesser. The trial court did not err in declining to instruct on reckless driving in this case. Minano, 710 P.2d at 1016.
The majority opinion, implicitly, and the concurring opinion, explicitly, express concern that juries will not perform their duty to acquit a defendant who has been drinking and engages in questionable driving even if the jury has a reasonable doubt that he is driving under the influence of alcohol. This fear is most pronounced when the driving results in an accident. To diminish this fear, the majority wishes to give the jury an alternate to a complete acquittal, i.e., a guilty verdict for another offense, preferably one which does not have a mandatory minimum penalty. Similar concerns led the California Supreme Court to adopt the lesser related offense doctrine in Geiger, 35 Cal.3d 510, 199 *124Cal.Rptr. 45, 674 P.2d at 1316 n. 12. We followed Geiger in Minano v. State, 690 P.2d at 33 (Alaska App.1985). The supreme court reversed, however. State v. Minano, 710 P.2d at 1016.
Today’s decision repudiates the supreme court’s decision in Minano and reverts to Geiger. A proper appreciation of our status in an hierarchical court system should preclude this result.
I would affirm the judgment of the district court.
. The state apparently did not seek instructions on the alternate theory in the complaint that Comeau was driving with a prohibited blood alcohol level, nor did it take advantage of the statutory presumption or, stated more accurate-*119Iy, statutory inference that one who drives with a certain blood alcohol level is impaired. See, A.R.E. 303(a)(1); Kalmakoff v. Anchorage, 715 P.2d 261, 262-63 n. 2 (Alaska App.1986). Instead, the state elected to show, probably by reference to the accident, that Comeau was impaired as a matter of fact. The state will rarely be willing to put all of its eggs in a single basket; consequently, it is unlikely that this case will have much precedential effect in determining whether, in the ordinary case, a person charged with driving while intoxicated is entitled to lesser-included offense instructions on reckless and negligent driving. The precedential effect of this case is further weakened by the concurring opinion. It is possible of course, that the state will not seek a hearing in this case, or that a hearing, if requested, will be denied. Consequently, I would agree with the concurrence that prudence might well lead trial courts to automatically treat reckless and negligent driving as a lesser offenses to DWI where the state offers evidence of poor driving to bolster its case.
. Of course it is possible that our court is correct and all the other courts in error, but a unique position should require greater justification than one in the mainstream of reported decisions and explain in some detail why the majority rule is unpersuasive. It is insufficient to rely, as the majority does, on the distinction between the cognate and statutory elements theories of lesser-included offenses, inasmuch as at least one jurisdiction rejecting the majority’s position, i.e., California, also employs the cognate approach. See People v. Geiger, 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303 (Cal.1984) (approving the use of the lesser-related offense instruction at defendant’s request).
. All of the offenses being considered in this case are misdemeanors. Under Alaska law, it is not necessary that a lesser offense have a lesser penalty than a greater offense to be a lesser-included offense. Nicholson v. State, 656 P.2d 1209, 1212 (Alaska App.1982) (adjective "lesser” in Criminal Rule 31(c) refers to relations between elements of an offense, not the relation between their penalties). But see Christie v. State, 580 P.2d 310, 317 (Alaska 1978); James v. United States, 16 Alaska 513, 238 F.2d 681 (9th Cir.1956) (applying Alaska law).
. In Elisovsky, the court said:
Two theories have developed defining when an offense is "necessarily included” in another offense. Under the “statutory elements” analysis, if it is possible to commit the greater offense under the statute without first having committed the lesser offense, an instruction on the lesser offense is not required. Under that theory, the offense of assault with a dangerous weapon could be committed with the use of weapons other than a firearm. Thus, the elements of careless use of a firearm would not necessarily be included in all of the means by which assault with a dangerous weapon could be committed. We note, however, that Criminal Rule 31(c) refers to "the offense charged,” not the statute under which the offense is charged.
The judicial constructions which have attempted to remedy the defects of the statutory approach have come to be called the "cognate approach." This approach focuses closely on the facts charged in the indictment to determine whether the defendant had actual notice of possible lesser included offenses. At least one court has found the cognate approach "[a] more natural, realistic and sound interpretation of ‘lesser included offense,'" where the statutory analysis is found to he inadequate.
Of course, when the statutory offense necessarily includes all the elements of the lesser offense, the distinction does not arise.
592 P.2d at 1225-26 (footnotes and citations omitted).
. In all of the cases distinguishing the cognate and statutory element theories, it was possible to commit the greater offense in a number of ways, some of which had more than one element which distinguished the greater from the proferred lesser offense. In such cases, there was only one way of committing the lesser offense. Here, there are arguably two ways of committing reckless driving. In the majority’s view, a person would be driving recklessly: (1) if he drove under the influence of alcohol or, (2) if without drinking, his driving, nevertheless, created "a substantial and unjustifiable risk of harm to a person or property.” Under the first theory, reckless driving and drunk driving merge since it would be impossible to commit the lesser without also committing the greater inasmuch as both involve drunk driving and nothing more. I do not understand the majority opinion to contend that in any case where two statutes prescribe the same conduct but have different penalties and the state charges under the statute with the greater penalty, the defendant is entitled to an instruction under the statute having the lesser penalty, since juries do not determine penalties and there would be no other rational basis for the jury to distinguish between the two offenses. Cf. Hart v. State, 702 P.2d 651, 659-63 (Alaska App.1985) (Alaska and federal constitutions do not preclude conviction of a class A felony, if the same conduct under the same circumstances could have resulted in conviction of a class B felony). The majority must therefore depend upon the second theory of reckless driving which requires the jury to find that the defendant was not drinking but that his conduct, nevertheless, presented "a substantial and unjustifiable risk of harm to a person or property." There is no explanation of how this alternate theory of reckless driving is necessarily included in driving while intoxicated in the majority opinion. See Minano, 710 P.2d at 1016.
. My disagreement with the position taken by the majority has nothing to do with the doctrine of nullification, nor does it depend on the jury’s confusion about its proper task.
In my view, the majority opinion misconstrues the cognate theory. The decision rests on a presumed equivalency between driving while impaired by alcohol and creating an unjustifiable risk of injury to others. Thus, according to the majority opinion, anytime a jury finds impairment, it must necessarily find recklessness (or perhaps more accurately that the two findings are somehow synonymous). Assuming this is true, it still does not satisfy the cognate theory unless the jury is expressly required to make the second finding.
Here, the jury was never asked to find that Comeau endangered anyone as a prerequisite to finding that he drove under the influence. In contrast, a jury must expressly find “unlawful entry" to convict of burglary under the prosecution theory in Whitaker and would have had to find unlawful withholding in order to convict of attempted larceny under the prosecution theory in Paterno. When the Whitaker court required an "inherent relationship” between two offenses in order to satisfy the cognate theory, it was not referring to the fact that both “unlawful entry” and "burglary" protected similar societal interests. In context, it was referring to the fact that burglary will almost always involve an unlawful entry and only rarely be provable without it. In contrast, a jury will virtually never be required to expressly find reckless driving in order to convict of DWI.
. It seems clear that by prohibiting driving under the influence of alcohol and defining that offense to include the slightest degree of impairment, the legislature sought to permit prosecutions of individuals before they became reckless and created an unusual and imminent specific risk to some other person including themselves. The legislature has made this clear by requiring actual endangerment for a conviction of negligent driving but imposing no such requirement for a conviction of driving under the influence. It seems equally clear that the legislature intended to incorporate this requirement into reckless driving as well. If negligent driving requires that a specific person or property be endangered, but reckless driving could be proved by showing a more generalized risk, then negligent driving would not be a lesser-included offense of reckless driving since it would be possible to be convicted of reckless driving but acquitted of negligent driving. See Minano, 710 P.2d at 1016.
The majority opinion counters that the legislature intended to modify the definition of lesser-included offenses contained in Criminal Rule 31(c) by making negligent driving a lesser-in-eluded offense of reckless driving even though it would not otherwise comply with Criminal Rule 31(c). The legislature cannot constitutionally do this without complying with certain requirements, and it does not appear that the statute satisfied the requirement for changing a court rule. See Alaska Const. art. 4, § 15 (establishing supreme court's rule-making power). While the power to create substantive rights is legislative, the authority to change court rules, i.e., to enact procedures to implement those rights, is judicial. Thomas v. State, 566 P.2d 630 (Alaska 1977). Since we should interpret statutes to preserve their constitutionality, it seems more reasonable to interpret the statute in the way I have done, i.e., as intended to affect substance rather than procedure, than in the manner suggested by the majority. There is no suggestion that the statute in question was specifically intended to change Rule 31(c). See Leege v. Martin, 379 P.2d 447 (Alaska 1963) (setting out prerequisites for legislative modification of court rules).
. This is the theme of this dissent. See n. 5, supra.