N.C.P.I.—Crim. 206.57

NOTE WELL: This instruction is to be used for offenses

occurring before December 1, 2006. For offenses

occurring on or after December 1, 2006, use N.C.P.I.-

Crim. 206.57A.

NOTE WELL: If a separate charge of driving while

impaired is submitted, then the jury may only convict

the defendant of this offense if it also convicts the

defendant of driving while impaired. See State v.

Mumford, 2010 No. COA09-300, N.C. App. LEXIS 35,

(Jan. 5, 2010).

CAUTION: If the jury convicts the defendant of this

offense and driving while impaired, the court should

arrest judgment on the driving while impaired offense.

If the jury finds the defendant not guilty of driving

while impaired, the court must arrest judgment on this

offense.

The defendant has been charged with felony death by vehicle.

For you to find the defendant guilty of this offense, the State must

prove four things beyond a reasonable doubt:

First, that the defendant was driving1 a [vehicle]2 [commercial

vehicle].3

Second, that the defendant was driving that [vehicle] [commercial

vehicle] upon a [highway] [street] [public vehicular area] within the

state. 4

Third, that at the time the defendant was driving that [vehicle]

[commercial vehicle] the defendant

NOTE WELL: If the evidence supports submission of the

case under alternatives (A) and (B), instructions on

both alternatives should be given.

(A) [was under the influence of an impairing substance.5 ((Name

substance involved) is an impairing substance.) The

defendant is under the influence of an impairing substance

when the defendant has taken (or consumed) a sufficient

quantity of that impairing substance to cause the defendant

to lose the normal control of the defendant’s bodily or mental

faculties, or both, to such an extent that there is an

appreciable impairment of either or both of these faculties.6]

(B) [had consumed sufficient alcohol that a chemical analysis7

made at any relevant time after driving showed the defendant

to have an alcohol concentration8 of [0.08] [0.04]9 or more

grams of alcohol [per 210 liters of breath] [per 100 milliliters

of blood]. A relevant time is any time after driving in which

the driver still has in the driver’s body alcohol consumed

before or during driving].10

(Evidence in this case tends to show that a chemical test known as

a(n) [intoxilizer] [blood test] was offered to the defendant by a law

enforcement officer and that the defendant refused to take the test. You

may consider this evidence together with all other evidence in

determining whether the defendant was under the influence of an

impairing substance at the time the defendant drove a motor vehicle.)

And Fourth, that the impaired driving by the defendant proximately

but unintentionally caused the victim's death. Proximate cause is a real

cause, a cause without which the victim's death would not have occurred,

and one that a reasonably careful and prudent person could foresee would

probably produce such [injury] [damage] or some similar injurious result.

(The defendant's act(s) need not have been the last, or nearest cause. It

is sufficient if [it] [they] concurred with some other cause acting at the

same time which, in combination with [it] [them], proximately caused the

victim's death.)

If you find from the evidence beyond a reasonable doubt that on or

about the alleged date the defendant drove a [vehicle] [commercial

vehicle] on a [highway] [street] [public vehicular area] and that when the

defendant did so the defendant [was under the influence of an impairing

substance] [had consumed sufficient alcohol that a chemical analysis

made at any relevant time after driving showed the defendant to have an

alcohol concentration of [0.08] [0.04] or more grams of alcohol [per 210

liters of breath] [per 100 milliliters of blood], and that defendant's

impaired driving proximately but unintentionally caused the victim's

death, it would be your duty to return a verdict of guilty. If you do not so

find or have a reasonable doubt as to one or more of these things, it

would be your duty to return a verdict of not guilty.11