Comeau v. State

758 P.2d 108, 1988 Alas. App. LEXIS 68, 1988 WL 69446

• Court: Court of Appeals of Alaska
• Decided: July 1, 1988
• Docket: A-2074
• Status: Published

Opinions

OPINION

BRYNER, Chief Judge.

Patrick A. Comeau was convicted by a jury of driving while intoxicated (DWI), in violation of AS 28.35.030. At trial, he requested an instruction allowing the jury to consider reckless driving, AS 28.35.040, as a lesser-included offense of DWI. The trial court declined to give the requested instruction. Comeau appeals, contending that the trial court erred in its ruling. We reverse.

Under Alaska Rule of Criminal Procedure 31(c), “[a] defendant may be found guilty of an offense necessarily included in the offense charged....” An offense is “necessarily included in the offense charged” when it is impossible to commit the charged offense without also committing the included offense. Minano v. State, 690 P.2d 28, 31 (Alaska App.1984), rev’d on other grounds, State v. Minano, 710 P.2d 1013, 1016 (Alaska 1985). When a lesser offense is necessarily included in the offense charged, the jury must be instructed on the included offense if an element distinguishing the greater offense from the lesser is actually in dispute. Rice v. State, 589 P.2d 419, 420 (Alaska 1979); Blackhurst v. State, 721 P.2d 645, 648 (Alaska App.1986). Failure to instruct on a lesser-included offense violates the accused’s right to fundamental fairness and is reversible error. Christie v. State, 580 P.2d 310, 318 (Alaska 1978).

Two approaches have been developed for determining whether a lesser offense is necessarily included in the offense charged, the statutory elements approach and the cognate approach. Both focus on the same fundamental question: would commission of the offense charged be possible without commission of the lesser offense? Each approach resolves this question from a slightly different perspective. The statutory elements approach focuses narrowly and exclusively on the elements of the greater and lesser offenses, as defined by statute. The cognate approach concentrates more broadly and realistically on the facts charged in the complaint or indictment and on the evidence actually presented at trial. State v. Minano, 710 P.2d at 1016; Blackhurst v. State, 721 P.2d at 648; Norbert v. State, 718 P.2d 160, 162-63 (Alaska App.1986).

Alaska has adopted the cognate approach. State v. Minano, 710 P.2d at 1016; Elisovsky v. State, 592 P.2d 1221, 1226 (Alaska 1979). Accordingly, a review of the evidence presented against Comeau at trial is crucial to the determination of whether, in his case, reckless driving was a necessarily included offense of DWI.

The state’s theory was in essence that Comeau drove while actually impaired by alcohol and recklessly caused an accident. The evidence tended to establish that, while driving on College Road in Fairbanks, Co-meau lost control of his car, swerved suddenly and for no apparent reason into the path of another automobile, and caused a collision. Comeau left the scene without identifying himself to the other driver or reporting the accident. When he was apprehended several hours later, he was given a breath test, which revealed a blood alcohol level of .134, well above the presumptive level of intoxication. Extrapolation based on the assumption that Comeau had consumed no alcohol after the accident yielded an estimated blood alcohol level of between .15 and .22 at the time of the accident.

The only evidence of Comeau’s driving was the evidence establishing his involvement in the accident. As evidence of intoxication, the state relied on Comeau’s involvement in the accident and on his test results. The only theory of DWI submitted to the jury was that Comeau’s driving was actually impaired by his consumption of alcohol; the jury was not given the option of finding Comeau guilty on the theory that his blood alcohol level exceeded the permissible statutory maximum.¹

For his part, Comeau did not dispute that he had been driving and was involved in an accident. He testified, however, that the accident was entirely the fault of the other motorist and that his driving was not impaired by his prior consumption of alcohol. According to Comeau, his high breath test resulted from alcohol that he had consumed between the time of the accident and his arrest.

Based on this evidence, we must determine whether a rational juror could have found Comeau guilty of DWI but not guilty of reckless driving. The evidence left several possibilities open to the jury. The first two are obvious: the jury could have accepted the state’s evidence in its entirety and convicted Comeau of DWI, or it could have accepted Comeau’s testimony completely and acquitted him.

A third possibility open to the jury under the evidence was to accept the state’s theory that Comeau was responsible for the accident but to conclude that there was a reasonable doubt as to his intoxication when the accident occurred. The possibility of the jury reaching this result arose from the significant lapse of time between the accident and Comeau’s apprehension, and from Comeau’s testimony that he had consumed alcohol after the accident occurred. By expressly contesting the issue of his intoxication at the time of the accident, Comeau placed in dispute the principal element distinguishing the crime charged, DWI, from the lesser offense of reckless driving.

The fourth, and last, possible outcome open to the jury is the critical one. Because Comeau disputed his responsibility for the accident as well as his intoxication when it occurred, it is at least conceivable that the jury could have concluded that his driving at the time of the accident was actually impaired by his consumption of alcohol but that the accident nevertheless occurred through no fault of his own.² It is this possible outcome that raises the central question whether Comeau could have been convicted of drunken driving but acquitted of reckless driving. Only if Co-meau could not have been convicted of DWI without also being convicted of reckless driving would the latter offense be necessarily included in the former. See Alaska R.Crim.P. 31(c).

If the issue of recklessness depended on Comeau’s fault in causing the accident it would be apparent that, under the fourth possible outcome, he could be convicted of DWI without also being convicted of reckless driving. However, Comeau’s recklessness cannot properly be made to turn on his responsibility for the accident. For if Comeau drove while actually impaired by alcohol, he drove recklessly, regardless of who was at fault in the accident. To conclude otherwise would be to hold that a person who drives drunkenly on a public roadway in the presence of other cars is not reckless unless that person actually causes an accident. Although that is the view taken in the dissenting opinion, it is foreclosed by prior decisions of the Alaska Supreme Court and this court.³

In Lupro v. State, 603 P.2d 468 (Alaska 1979), the defendant drove while he was intoxicated, became involved in an accident that caused the death of a pedestrian, and was convicted of manslaughter. Under the law applicable at the time, manslaughter was defined as a homicide resulting from the “culpable negligence” of the accused. See former AS 11.15.080. Lupro challenged his conviction on appeal, contending that, in order to establish culpable negligence, the state was required to prove not only that he drove while intoxicated but also that he committed some additional act of negligence. Lupro, 603 P.2d at 474-75.

The supreme court squarely rejected this argument. The court first defined “culpable negligence,” as follows:

In order to establish culpable negligence the state must show a degree of conduct more wanton and reckless than that involved in ordinary negligence ...[,] “a reckless disregard of consequences, a needless indifference to the rights and safety and even the lives of others.”

Lupro, 603 P.2d at 475 (citations omitted). This definition is synonymous with the traditional definition of recklessness. See St John v. State, 715 P.2d 1205, 1208-09 (Alaska App.1986).

Applying this definition, the Lupro court went on to hold that a person who drives while intoxicated is culpably negligent as a matter of law:

We believe that a person who drives while he is so intoxicated that he cannot control his actions falls within this definition. “One who is considerate of the rights of others does not drive while he is drunk.” Where there is sufficient evidence that the driver was intoxicated at the time of the accident the state need only show beyond a reasonable doubt that the intoxication was the cause of the victim's death....

... Before reaching a verdict of guilty it was necessary only that each juror find that the defendant had been driving while intoxicated and that this was the proximate cause of the accident.

Lupro, 603 P.2d at 475 (citation omitted). The unmistakable import of the court’s holding in Lupro is that, under the traditional definition of recklessness, a person who drives while actually impaired by alcohol is per se reckless.

Nevertheless, the law governing recklessness for most crimes has now changed. The Alaska Revised Criminal Code, which took effect after Lupro was decided, has divided the former concept of “culpable negligence” into two distinct but related culpable mental states: recklessness and criminal negligence. See AS 11.81.900(a)(3) and (4).⁴ Under the current statutory definitions, the level of risk necessary for both recklessness and criminal negligence is identical: both standards require conduct that creates “a substantial and unjustifiable risk” — that is,

[t]he risk must be of such nature and degree that disregard of it [or ‘the failure to perceive’ it] constitutes a gross deviation from the standard of care that a reasonable person would observe_

AS 11.81.900(a)(3). This level of risk is substantially similar to the risk required under Lupro to establish culpable negligence. See St. John v. State, 715 P.2d at 1208-09.

The only distinction drawn by the revised criminal code between recklessness and criminal negligence lies in the accused’s subjective perception of the risk posed by the accused’s conduct. Recklessness occurs when the defendant is “aware of and consciously disregard[s]” the risk. See AS 11.81.900(a)(3). Criminal negligence results when the defendant merely “fails to perceive” that risk. See AS 11.81.900(a)(4). The current statutory definition of “recklessly” further provides, however, that “a person who is unaware of a risk of which the person would have been aware had that person not been intoxicated acts recklessly....”

This court has had occasion to review Lupro in light of the intervening changes in the statutory definition of recklessness. In so doing, we have expressly recognized the continued vitality of the supreme court’s decision. In Edgmon v. State, 702 P.2d 643 (Alaska App.1985), we considered these statutory provisions in the context of a drunken driving manslaughter prosecution. We concluded that, in determining whether an intoxicated person has acted recklessly or with criminal negligence, the issue of whether that person “is unaware of a risk of which the person would have been aware had that person not been intoxicated” is a question of fact. Thus, we held that, to prove recklessness as opposed to criminal negligence, “[t]he state [was] ... obligated to prove that Edgmon, given his faculties, his education, his experience, and his intelligence, would have perceived the risk [posed by his drunken driving] but for his intoxication.” Id. at 645.

Implicit in our holding in Edgmon is the recognition that, under the statutory definitions set out in AS 11.81.900(a)(3) and (4), a person who drives while intoxicated must either be reckless or criminally negligent. What was implicit in Edgmon we made explicit in St. John v. State, 715 P.2d 1205 (Alaska App.1986).

In St. John, another drunken driving manslaughter case, the trial judge instructed the jury that it was required to find that the defendant acted recklessly if it found that he drove while intoxicated. In addressing a challenge to this instruction, we specifically recognized that the basic holding in Lupro continued to apply to the statutory definitions of recklessness and criminal negligence found in the revised criminal code:

In summary, evidence that a defendant drove while intoxicated and, as a result, caused the death of another person, may establish a prima facie case of the recklessness necessary for a finding that the defendant committed manslaughter.

715 P.2d at 1209.

We nevertheless concluded that the instruction challenged in St. John was improper for two reasons. First, relying on our prior decision in Edgmon, we noted that the question of whether drunken driving amounted to recklessness, as opposed to criminal negligence, was an issue of fact for the jury. Because the jury might have found either recklessness or criminal negligence, we concluded that it was error to instruct that drunken driving was tantamount to recklessness. 715 P.2d at 1209. Second, relying on case law prohibiting the use of mandatory presumptions in criminal cases, see Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983), we held that the legal relationship between drunken driving and recklessness should have been communicated to the jury in the form of a permissive inference rather than a mandatory presumption. Id. at 1209-10 & n. 2.

Neither of the grounds we relied on for reversal in St. John erodes the validity of the primary holding in Lupro. While St. John recognizes that drunken driving may amount to either recklessness or criminal negligence, by so doing it establishes that a person who drives on a public roadway while actually impaired by alcohol is at least criminally negligent. Beyond that, St. John stands for the proposition that the trial court cannot, by the use of a mandatory presumption, usurp the jury’s role of deciding whether the state has proved all the elements of the offense. This proposition has no bearing whatsoever on whether a person who engages in drunken driving necessarily acts recklessly.⁵

When read together, the holdings in Lupro, Edgmon, and St. John establish beyond dispute that a person convicted of driving on a public roadway, in the presence of other traffic, while actually impaired by alcohol, is also necessarily guilty of driving recklessly or with criminal negligence, as those terms are defined in the revised criminal code.⁶ Applying the settled rules governing lesser-included offenses to the definition of recklessness and criminal negligence contained in the revised criminal code, it follows that lesser-included offense instructions on reckless and negligent driving would be required in a DWI prosecution whenever the element of intoxication was disputed and whenever the prosecution supported its case by proof that the defendant actually drove in an erratic or dangerous manner.⁷

Nevertheless, this conclusion does not fully resolve the issue presented in Comeau’s case. The offenses of reckless and negligent driving, as set out in AS 28.35.040 and .045, are not subject to the definitions of recklessness and criminal negligence established in the revised criminal code. Rather, each of the offenses includes its own definitions.

Alaska Statute 28.35.040⁸ establishes the offense of reckless driving, prohibiting a person from driving “in a manner which creates a substantial and unjustifiable risk of harm to a person or property.” The statute goes on to provide:

A substantial and unjustifiable risk is a risk of such a nature and degree that the conscious disregard of it or a failure to perceive it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

AS 28.35.040(a).

This definition is virtually identical in scope to the combined conduct encompassed by the definitions of recklessness and criminal negligence that are set out in the revised criminal code. Compare AS 28.35.040(a) with AS 11.81.900(a)(3) and (4). In substance, this definition is also indistinguishable from the concept of “culpable negligence” that was passed upon by the supreme court in Lupro. See Bailey v. Lenord, 625 P.2d 849, 856 (Alaska 1981). Thus, the definition of recklessness in AS 28.35.040(a) changes nothing. Its similarity to the definitions contained in the past and current criminal codes serves only to underscore the validity of the basic conclusion reached in Lupro, Edgmon, and St. John: that a person who drives while under the influence of alcohol is guilty of reckless driving.

In comparison, Alaska’s negligent driving statute, AS 28.35.045,⁹ may be satisfied by proof of an “unjustifiable risk of harm," as opposed to the “substantial and unjustifiable” risk required for reckless driving. The definition of an “unjustifiable risk” is essentially the same definition that applies to cases of ordinary civil negligence:

An unjustifiable risk is a risk of such a nature and degree that a failure to avoid it constitutes a deviation from the standard of care that a reasonable person would observe in the situation.

AS 28.35.045(a). In addition to requiring proof of negligence, however, the negligent driving statute requires proof of another element: that a person or property was actually endangered by the conduct of the accused. For purposes of this requirement, endangerment of a person or property includes the defendant and the defendant’s property. Id.

In context, the reason for inclusion of an actual endangerment requirement in the negligent driving provision is obvious: because the statutory definition of negligence incorporates the same standard of ordinary care used in cases of civil negligence, the added requirement of actual endangerment is necessary to protect against the possibility that a prosecution for negligent driving —a relatively serious infraction — might be based merely upon commission of some less serious traffic offense. Without the actual endangerment requirement, for example, a driver who exceeded the speed limit by five miles per hour on an empty stretch of highway would be subject to prosecution and conviction for negligent driving.¹⁰

Although the dissenting opinion attempts to engraft the “actual endangerment” requirement of the negligent driving statute onto the reckless driving provision that precedes it, the attempt is strained and cannot withstand scrutiny. While inclusion of the actual endangerment requirement in the negligent driving statute is dictated by that statute’s reliance on the civil standard of ordinary care, no similar rationale justifies tacking a parallel requirement onto the reckless driving provision. To do so would be senseless. And in fact the legislature did not do so. Alaska’s reckless driving prohibition is set out in a separate statutory provision from the negligent driving statute, and its clear and unambiguous language omits all reference to the need for proof of actual endangerment. The trial court did not construe the reckless driving provision to include an added requirement of actual endangerment, and the state has never suggested such a novel interpretation.¹¹

As justification for reading into the reckless driving statute a requirement which is plainly not there, the dissenting opinion points to the language of the negligent driving statute that expressly makes negligent driving a lesser-included offense of reckless driving. AS 28.35.045(b) provides:

The offense of negligent driving is a lesser offense than, and included in, the offense of reckless driving, and a person charged with reckless driving may be convicted of the lesser offense of negligent driving.

The dissent reasons that, unless the actual endangerment requirement is read into the reckless driving statute, negligent driving would not be a true lesser-included offense of reckless driving. And so, the dissent decides that the extra requirement must be added to the reckless driving statute. See dissenting opinion, footnote 6.

This reasoning is a case of the tail wagging the dog. The legislature’s apparent reason for including express lesser-included offense language in the negligent driving statute was precisely that this language was necessary because the statute, as written, was not a true lesser-included offense of the reckless driving statute. Although Alaska’s criminal and motor vehicle codes establish a myriad of true greater offense/lesser-included offense combinations, we are aware of no other instance in which the legislature has chosen to include a comparable provision expressly designating one offense as a lesser-included offense of another. This is a telling indication of the legislature’s recognition that express lesser-included offense language is simply unnecessary when one offense is a true lesser-included offense of another. The legislature could easily have included an express actual endangerment requirement in the reckless driving statute had it wanted one. The fact that it did not further serves to establish that the lesser-included offense language in the negligent driving statute was motivated by the legislature’s desire to specify a lesser-included offense where one would otherwise not have existed.¹²

In summary, we conclude that, under the cognate approach, reckless driving and negligent driving were lesser-included offenses of DWI in the present case. Because the issue of Comeau’s intoxication was in dispute, and because the state presented evidence from which the jury could have found Comeau guilty of reckless driving or negligent driving even if it acquitted him of DWI, the trial court erred in refusing Comeau’s request for an instruction on these lesser-included offenses.¹³

The conviction is REVERSED.

1 . Under AS 28.35.030(a), DWI may be established by proving that the defendant was actually under the influence of intoxicating liquor or that the defendant’s blood alcohol level, as revealed by a breath test, exceeded 100 milligrams of alcohol per 100 milliliters of blood. The statute provides, in relevant part:

(a) A person commits the crime of driving while intoxicated if the person operates or drives a motor vehicle or operates an aircraft or a watercraft

(1)while under the influence of intoxicating liquor, or any controlled substance listed in AS 11.71.140 — 11.71.190;

(2) when, as determined by a chemical test taken within four hours after the alleged offense was committed, there is 0.10 percent or more by weight of alcohol in the person’s blood or 100 milligrams or more of alcohol per 100 milliliters of blood, or when there is 0.10 grams or more of alcohol per 210 liters of the person’s breath; or

(3) while the person is under the combined influence of intoxicating liquor and another substance.

2 . Of course, a strong argument could also be made that this fourth possible outcome was not realistically open to the jury. Comeau’s involvement in the accident was the principal evidence offered by the state to establish that his driving was actually impaired due to the consumption of alcohol. Apart from this evidence, the only evidence of his intoxication was the fact of his elevated blood alcohol level. Comeau’s elevated blood alcohol level, however, did not directly establish that his driving was actually impaired. In this regard, it is significant that Comeau’s jury was not instructed on the statutory presumption applicable to breath test results of .10 or greater. See AS 28.35.030(a)(2). Realistically, then, it is difficult to see how the jury could have concluded that Comeau’s driving was actually impaired by alcohol if it rejected the state’s theory that he caused the accident. See Marker v. State, 692 P.2d 977, 983 (Alaska App.1984) (emphasizing the significance of applying the cognate approach realistically). Because Judge Singleton’s dissenting opinion posits this fourth outcome as a realistic possibility under the evidence, however, the discussion in the text proceeds on the assumption that the jury could reasonably have reached the conclusion that Comeau’s driving was impaired by alcohol but that he was not responsible for the collision.

3 . The concurring opinion suggests that there may be some fundamental distinction between the recklessness inherent in DWI and other forms of recklessness covered by the reckless driving statute. Thus, the concurrence sees a possible distinction in the fact that reckless driving, as opposed to DWI, "involves bad and heedless driving_ Driving while intoxicated ... does not necessarily involve physical acts which constitute bad driving. Primarily, DWI involves driving while impaired by alcohol.” I find this statement particularly disturbing in its implications, for it suggests that DWI may involve some lesser, innocuous form of recklessness — a form less threatening than others. The concurring opinion makes the mistake of confusing reckless conduct with its immediate result. It is of course true that many types of recklessness lead to results that can readily be perceived by an external observer as being dangerous. But there are many reckless acts besides driving while intoxicated that create a substantial and unjustifiable risk of harm without immediate, externally observable signs of danger. For example, a person who chose to drive with closed eyes would certainly be reckless, but it is conceivable that such a driver could go for some distance without creating an appearance of “bad driving.” This is not to say that the driving is not "bad driving;’’ only that it has no outwardly observable bad results. Like a driver with closed eyes, a driver who is impaired by alcohol is engaging in “bad driving." The fact that both drivers may go for some distance without outward manifestations of their recklessness has little to do with the fact that their conduct is reckless, nor does it serve as a basis for distinguishing their recklessness from other forms of recklessness.

4 . AS 11.81.900(a)(3) and (4) provide that, for purposes of the revised criminal code,

(3) a person acts "recklessly” with respect to a result or to a circumstance described by a provision of law defining an offense when the person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists; the risk must be of such a nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation; a person who is unaware of a risk of which the person would have been aware had that person not been intoxicated acts recklessly with respect to that risk;

(4) A person acts with "criminal negligence” with respect to a result or to a circumstance described by a provision of law defining an offense when the person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists; the risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

5 . As a concomitant of its role as the exclusive fact-finder in criminal cases, the jury always has the ability to nullify the law. This ability hardly serves as a basis for denying a lesser-included offense instruction. If that were the case, then a lesser-included offense instruction would never be required under the prevailing legal standard, because, in theory, the jury would always have the power, by resorting to nullification, to convict the defendant of the crime charged while acquitting on a necessarily included lesser offense. In deciding whether Comeau could have been acquitted of reckless driving had he been convicted of DWI, we must assume that the finder of fact — here, the jury — would have acted rationally and in accordance with applicable law; the possibility of nullification can play no part in the analysis. See Strickland v. Washington, 466 U.S. 668, 694-95, 104 S.Ct. 2052, 2068-69, 80 L.Ed.2d 674 (1984). The dissent, in the present case, accuses the majority of "confusing] a prima facie case with the necessary finding required to establish a greater and lesser offense relationship under the cognate theory." The dissent, however, appears to do precisely what is forbidden — that is, to posit the possibility of an irrational jury verdict as a basis for concluding that Comeau could have been convicted of the greater offense but acquitted of the lesser.

6 . We emphasize that we are dealing with the cognate approach to lesser-included offenses and that the cognate approach deals with case-specific evidence. Lupro, Edgmon, and St. John, as well as the present case, all involve situations in which the defendant drove on a public roadway in the presence of other vehicles or persons. The statute prohibiting DWI, however, covers not only actual driving, but any act of "operating” a motor vehicle. In prior DWI cases, we have broadly defined “operating" to include all situations in which the accused exercises actual physical control over a motor vehicle, regardless of whether any actual driving occurs. See, e.g., Lathan v. State, 707 P.2d 941 (Alaska App.1985). The supreme court has recently added its voice to ours. See Alaska Department of Public Safety v. Conley, 754 P.2d 232, (Alaska, 1988). Accordingly, in certain situations involving "operation" where no actual driving occurs, it might be arguable that the defendant’s conduct, though technically prohibited under the DWI statute, is not actually reckless or criminally negligent. In such unusual situations, the cognate approach might lead to the conclusion that reckless or negligent driving would not be lesser-included offenses of DWI, because it might be possible for a reasonable jury to find the defendant guilty of DWI without also finding reckless or negligent driving. By the same token, where the prosecution in a DWI case relied exclusively on the statutory prohibition against driving with a blood alcohol level of .10 or greater and made no effort to establish actual impairment, it might be arguable— though somewhat less plausibly — that conviction of DWI would not necessarily imply commission of reckless or negligent driving.

Because, in applying the cognate approach, we deal only with the facts and evidence in the case before us, it is sufficient to note that the issues raised by these hypothetical situations are not presented on the facts of Comeau’s case and can be addressed in future cases if and when they arise. As a practical matter, it may be expected that questions concerning the need for a lesser-included offense instruction will seldom arise in such cases, for typically the jury would have no evidence apart from the evidence of intoxication to rely on as a basis for finding recklessness. Because there would be no way to find reckless driving without finding DWI, the need for a lesser-included instruction on reckless driving would be obviated. See footnote 7, post.

Here, at any rate, Comeau undisputedly engaged in driving on a public roadway, with other traffic present. Under the circumstances, if the state established that he was actually under the influence of alcohol when he drove, Lupro, Edgmon, and St. John would compel the finding that he was either reckless or criminally negligent.

7 . Two aspects of this conclusion may be less than self-evident; they deserve clarification. First, if the element of intoxication is not actually in dispute — as when the accused defends solely on the contention that no driving occurred— then a lesser-included offense instruction is not warranted because there is no rational basis to support a conclusion that the accused committed the lesser offense without also committing the greater. See, e.g., Rice v. State, 589 P.2d 419, 420 (Alaska 1979). Second, a similar result follows when there is no evidence of actual impaired driving — as when the prosecution bases its entire case on a breath test result that exceeds the statutory maximum. In such situations, assuming the jury rejected the evidence of the accused’s breath alcohol level and acquitted of DWI, there would simply be no rational basis left to support a finding of guilt on the lesser offenses of reckless or negligent driving. Instruction on these offenses would therefore be unwarranted.

8 . The full text of AS 28.35.040 is as follows:

(a) A person who drives a motor vehicle in the state in a manner which creates a substantial and unjustifiable risk of harm to a person or to property is guilty of reckless driving. A substantial and unjustifiable risk is a risk of such a nature and degree that the conscious disregard of it or a failure to perceive it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

(b) A person convicted of reckless driving is guilty of a misdemeanor and is punishable by a fine of not more than $1,000 or by imprisonment for not more than one year or by both.

(c) Lawfully conducted automobile, snowmobile, motorcycle or other motor vehicle racing or exhibition events are not subject to the provisions of this section.

9 . The text of AS 28.35.045 is as follows:

(a)A person who drives a motor vehicle in the state in a manner which creates an unjustifiable risk of harm to a person or to property and who, as a result of the creation of the risk, actually endangers a person or property is guilty of negligent driving. An unjustifiable risk is a risk of such a nature and degree that a failure to avoid it constitutes a deviation from the standard of care that a reasonable person would observe in the situation. Proof that a defendant actually endangered a person or property is established by showing that, as a result of the defendant’s driving,

(1) an accident occurred;

(2) a person, including the defendant, took evasive action to avoid an accident;

(3) a person, including the defendant, stopped or slowed down suddenly to avoid an accident; or

(4) a person or property, including the defendant or the defendant’s property, was otherwise endangered.

(b) The offense of negligent driving is a lesser offense than, and included in, the offense of reckless driving, and a person charged with reckless driving may be convicted of the lesser offense of negligent driving.

(c) A person convicted of negligent driving is guilty of an infraction as provided under AS 28.40.050....

(d) Lawfully conducted automobile, snowmobile, motorcycle or other motor vehicle racing or exhibition events are not subject to the provisions of this section.

10 . This is because violation of a traffic regulation may constitute negligence per se. See Ferrell v. Baxter, 484 P.2d 250, 263 (Alaska 1971).

11 . In fact, the state does not seriously contend that Comeau could have committed DWI without also committing reckless driving. The state’s primary argument in support of the trial court’s rejection of a lesser-included offense instruction is its claim that there is no inherent relationship between DWI and reckless driving — that they are fundamentally different crimes and therefore not subject to treatment as greater and lesser offenses. See Reynolds v. State, 706 P.2d 708, 711 (Alaska App.1985); see also Moore v. State, 740 P.2d 472, 475 (Alaska App.1987). This argument is simply mistaken. The reckless driving statute seeks to protect society from damage inflicted to persons and property by a broad range of motorists who drive recklessly. The DWI statute protects against precisely the same social harm, but singles out a particularly dangerous subclass of reckless driver for more severe treatment. Far from being unrelated, the two offenses appear to be closely and inherently related as to their basic social purpose and the nature of the conduct they proscribe. The present case does not require us to determine whether and to what extent DWI may itself, under some circumstances, be a lesser-included offense of other crimes, such as manslaughter or assault. We express no opinion on the issue, since it is not raised in the case.

12 . Even if the dissenting opinion’s interpretation of the reckless driving statute were correct, it would not support the ultimate conclusion the dissent reaches in this case. The dissent relies on the finding that actual endangerment is a necessary ingredient of reckless driving in order to support its conclusion that, if Comeau did not cause the accident, he might have been guilty of DWI without also being guilty of reckless driving. The dissent reasons that, unless Comeau was responsible for the accident, his driving did not result in actual endangerment to persons or property. This reasoning is incorrect. As already pointed out, if Comeau drove while actually impaired by alcohol, he acted recklessly. Because it is undisputed that Comeau drove on a public roadway in the presence of other traffic and actually became involved in an accident, the risk he created by his recklessness unquestionably resulted in actual endangerment to persons or property, even if he was not responsible for the accident. Thus, even accepting arguen-do the dissenting opinion’s interpretation of AS 28.35.040, under the undisputed evidence in this case, a finding that Comeau engaged in drunken driving would necessarily lead not only to the conclusion that he drove recklessly but also to the further conclusion that his recklessness resulted in actual endangerment to persons or property. The dissent’s suggestion that a person can somehow be only “minimally impaired" by consumption of alcohol and therefore be technically guilty of DWI without posing any substantial and unjustifiable risk of harm is squarely contradicted by the holding in Lupro. For if the supreme court had believed that a driver who was impaired by alcohol could conceivably drive without creating an actual risk, the court would not have held, as it did in Lupro, that DWI is per se reckless.

13 . Our conclusion flows from a straightforward application of Criminal Rule 31(c) and the cognate approach. Contrary to the assertion of the dissenting opinion, we neither expand the cognate approach nor apply the "lesser related offense” doctrine. We are aware that our conclusion is contrary to that reached by the courts of many other jurisdictions. See generally, Annotation, Reckless Driving As Lesser Included Offense of Driving While Intoxicated or Similar Charge, 10 A.L.R. 4th 1252 (1981 & Supp.1987). To a certain extent the difference in result may be explained by differences between the statutes governing DWI and reckless driving in Alaska and other states. To a far greater extent, however, our departure from the case law of other jurisdictions has been compelled by Alaska’s adherence to the cognate approach and by the Alaska Supreme Court's decision in Lupro, which unequivocally holds that an intoxicated driver is a reckless driver.