N.C.P.I.—Crim. 206.57B

NOTE WELL: This instruction applies to offenses

occurring on or after December 1, 2006. See N.C. Gen.

Stat. § 15A-928 for provisions regarding indictment,

bifurcated trial, verdict, and judgment.

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 aggravated felony death by

vehicle.

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

prove five 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), (B) and (C), instructions on

each alternative should be given.

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

substance involved) is an impairing substance.5 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 impairment6 of either or both of these faculties.7]

(B) [Had consumed sufficient alcohol that at any relevant time

after driving the defendant had 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 that the driver still has in the driver’s body

alcohol consumed before or during driving].10 The results of a

chemical analysis are deemed sufficient evidence to prove a

person’s alcohol concentration.11

(C) [Had any amount of [a Schedule I controlled substance]

[metabolites of a Schedule I controlled substance] in the

defendant’s [blood] [urine] [breath]]. (Name substance) is a

Schedule I controlled substance or is a metabolite12 of a

Schedule I controlled substance.].13

(If the evidence tends to show that [a chemical test known as a(n)

[intoxilizer] [breathalyzer] [blood test] [urine test]14 was offered to the

defendant by a law enforcement officer and that the defendant refused to

take the test] [the defendant refused to perform a field sobriety test at

the request of an officer], 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 (allegedly)

drove a motor vehicle.)15

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.)

And Fifth, that on (name date) in (name court) defendant was

convicted of driving while impaired and this conviction was within seven

years of the defendant’s driving.

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] (or) [public vehicular area] in this state

and that when doing so the defendant [was under the influence of an

impairing substance] [had consumed sufficient alcohol that at any

relevant time after driving the defendant had an alcohol concentration of

[0.08] [0.04] or more grams of alcohol [per 210 liters of breath] [per 100

milliliters of blood]] [had any amount of [a Schedule I controlled

substance] [metabolites of a Schedule I controlled substance] in the

defendant’s blood or urine], that defendant’s impaired driving proximately

but unintentionally caused the victim’s death, and that at the time the

defendant was driving, the defendant had been convicted within the past

seven years driving while impaired, 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, you would not return a verdict of guilty of

aggravated felony death by vehicle but would consider whether the

defendant is guilty of felony death by vehicle. Felony death by vehicle

differs from aggravated felony death by vehicle in that the State need not

prove that the defendant had been convicted within the past seven years

of an offense involving impaired driving.

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] in this state and

that when doing so the defendant [was under the influence of an

impairing substance] [had consumed sufficient alcohol that at any

relevant time after driving the defendant had an alcohol concentration of

[0.08] [0.04] or more] [had any amount of [a Schedule I controlled

substance] [metabolites of a Schedule I controlled substance] in the

defendant’s [blood] [urine] [breath] 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.16