The opinion
Judge GREENE
concurring in part and dissenting in part.
While I agree with much in the majority opinion, I believe the defendant is entitled to a new trial on the grounds that the jury’s verdict of guilty is ambiguous and therefore fatally defective.
The jury rendered their verdict on the following verdict form:
We the jury unanimously find the defendant, George Alan Garvick:
Check (X) either:
1. X Guilty of impaired driving; or
2. _ Not guilty
*569 At trial the defendant objected to the verdict form used by the trial court and requested the trial court submit the following verdict form:
We, the twelve members of the jury, unanimously find the defendant to be:
_ 1. Guilty of impaired driving
_ (a) by driving while under the influence of an impairing substance
and/or
_ (b) by having consumed sufficient alcohol that at any relevant time after the driving the defendant had an alcohol concentration of 0.10 or more.
or
_ Not guilty.
This court has approved a verdict form similar to that submitted by the defendant since it avoids the risk of a nonunanimous verdict. See State v. Harrell, 96 N.C. App. 426, 433 , 386 S.E.2d 103, 106 (1989).
It is impossible to determine from the jury’s verdict whether the jurors unanimously thought the defendant guilty of impaired driving because of N.C.G.S. § 20-138.1(a)(l), because they unanimously thought the defendant guilty of N.C.G.S. § 20-138.1(a)(2), or because some jurors thought the defendant guilty because of § 20-138.1(a)(l) and some because of § 20-138.1(a)(2). Unless twelve jurors agree to one set of facts, unanimity has not occurred. Accordingly, I believe the defendant has been deprived of his constitutional right to be convicted by an unanimous jury. N.C. Const, art. I, § 24.