In Gundersen v. Anchorage, 762 P.2d 104, 114-15 n. 7 (Alaska App. 1988), the Court interpreted AS 28.35.030(a)(1), the "under the influence" subsection of Alaska's DUI statute, to require proof of a level of impairment that renders the driver incapable of operating a motor vehicle "with the caution characteristic of a person of ordinary prudence who is not under the influence". In Gundersen, the trial judge instructed the jury that being "under the influence" and having a blood alcohol level of .10 or greater were simply alternative ways of committing the same offense--and that the jurors did not have to be unanimous as to which of these two theories was proved. On appeal, Gundersen argued that the "under the influence" theory and the blood alcohol level theory actually described distinct offenses -- and that, therefore, it was unconstitutional to allow the jury to return a guilty verdict unless the jurors reached unanimous agreement as to which of these theories was proved.