concurring in part, and in part dissenting.
I respectfully concur in part and dissent in part. I concur with respect to the majority’s conclusion to uphold Howard’s convictions for driving under the influence of alcohol and refusal to submit to a preliminary breath test. I further agree with the majority’s conclusion that careless driving is a lesser-included offense of reckless driving. However, I respectfully dissent with regard to the majority’s conclusion that the evidence warranted giving the requested jury instruction on the offense of careless driving.
The evidence in this case shows that Howard traveled along the Interstate at a highly excessive speed; that he passed a semitrailer truck by driving on the Interstate shoulder; that he cut off *609and tailgated other vehicles; that this conduct occurred periodically, if not consistently, along a heavily traveled stretch of the Interstate between Lancaster and Sarpy Counties; and that, under the circumstances, his actions jeopardized his life and those of other people lawfully traveling on the Interstate. The totality of this incident bespeaks recklessness, and in my view, no reasonable jury could have found that he lacked the intent to do these things. The evidence did not warrant a careless driving instruction. I further observe that in connection with his defense, Howard did not pursue an intoxication defense, under which he would have had to have argued he was too intoxicated to form the requisite intent to commit reckless driving. Obviously, that strategy would have been tantamount to an admission of guilt of the charge of driving under the influence of alcohol, a result he was seeking to avoid.
Looking at the record as a whole, Howard was driving under the influence of alcohol, he refused to submit to a preliminary breath test, and he drove at excessive speeds for dozens of miles, endangering himself and others. The State proved beyond a reasonable doubt specific acts of recklessness, and there was no evidence adduced at trial which provided a rational basis for the jury to return a verdict acquitting him of the greater offense of reckless driving but convicting him of the lesser offense of careless driving. In sum, the evidence, in my view, supports only a charge of reckless driving. See State v. Tamburano, 201 Neb. 703, 271 N.W.2d 472 (1978). Therefore, I would conclude that the trial court did not err in refusing Howard’s proffered jury instruction on careless driving and would affirm in all respects.