OPINION DISSENTING IN PART/CONCURRING IN PART BY
LEIBSON, Justice.Respectfully, I concur in the Majority Opinion, except as to PART III.
The evidence on the testing of the appellant’s urine, and the presence of marijuana and amphetamines in the urine, came from a hospital medical technologist and a chemist from the Kentucky State Police. The police chemist admitted that no drugs were found in the appellant’s blood and that the urine levels of amphetamine and marijuana were unreliable as they relate to impairment. He could not give any opinion as to when the amphetamines or marijuana were ingested, and stated their presence in the urine and not in the blood means that it had passed from the blood system into the urine, meaning there was no way to determine if there was any impairment when the accident occurred.
This last fact is the key fact. The evidence failed the test of relevance because there was nothing to infer that the presence of marijuana and amphetamine as found in the urine made the ultimate fact at issue, whether appellant was driving under the influence, any more or less probable. Certainly we have not yet reached the sorry state of affairs where prior use of marijuana and amphetamines, unrelated to the accident, should be considered evidence *558to prove wanton conduct on the occasion of the accident.
Assuming there is some slight reason for making an argument to the contrary, considering the inflammatory effect on the listener of evidence suggesting drug abuse, the unduly prejudicial and inflammatory nature of the evidence so far outweighs probative value that for the trial court to permit such evidence is an abuse of discretion.
For the same reasons related to the prejudice raised against the appellant by evidence of drug abuse, such evidence cannot be viewed as harmless error. A blood alcohol reading of .13%, while evidence of intoxication, is not so extreme that testimony suggesting the appellant used other drugs could not possibly have affected the outcome of this case.
Thus I would reverse in PART III as well as in PARTS I, II and IV.
Further, although evidentiary insufficiency to prove wanton murder is not an issue raised on this appeal, because the case will be retried, I suggest, for reasons stated in my Concurring Opinion in Walden v. Commonwealth, Ky., 805 S.W.2d 102, 107 (1991), the homicide offense in this case does not reach the level necessary to convict the appellant of murder. Neither the level of intoxication reasonably inferable from his blood alcohol level nor anything else proved was sufficient to infer the appellant drove the car with a state of mind “manifesting extreme indifference” to "a grave risk of death to another person” of which he was consciously aware at the time. KRS 507.020(l)(b) and Commentary.
In our dedication to severely punish drunk drivers who kill, a dedication which I share, we have grown indifferent to the difference between murder and manslaughter, an indifference which I do not share.
“A person does not, per se, have the required mens rea for wanton murder because he undertakes to drive a motor vehicle after he has been drinking alcohol passed the point where he is under the influence. He is then not fit to drive, but he does not fit the description of wanton murder absent further circumstances indicating a heedless disregard for victims he is consciously aware of.” Walden, supra at 109.
COMBS, J., joins.
STEPHENS, C.J., joins that portion discussing the urinalysis.