N.C.P.I.—Crim. 270.00

NOTE WELL: This is an illustration of the recommended manner

to construct a charge for any criminal offense and is in

conformity with Ch. 15A of the General Statutes.

MODEL JURY INSTRUCTION

(Illustrating the use of N.C.P.I.—Crim. 100.00, 101.05, 101.10,

101.15, 101.20, 270.20A, and 101.35.)

IMPAIRED DRIVING—INCLUDING CHEMICAL TEST. G.S. 20-138.1.

MISDEMEANOR

Members of the jury: All of the evidence has been presented. It is now

your duty to decide from this evidence what the facts are. You must then

apply the law which I am about to give you to those facts. It is absolutely

necessary that you understand and apply the law as I give it to you, and not

as you think it is, or as you might like it to be. This is important because

justice requires that everyone tried for the same crime be treated in the

same way and have the same law applied. (N.C.P.I.—Crim. 101.05.)

The defendant has entered a plea of "not guilty." The fact that the

defendant has been charged is no evidence of guilt. Under our system of

justice, when a defendant pleads "not guilty" the defendant is not required

to prove the defendant’s innocence; the defendant is presumed to be

innocent. The State must prove to you that the defendant is guilty beyond a

reasonable doubt.

A reasonable doubt is a doubt based on reason and common sense,

arising out of some or all of the evidence that has been presented, or lack or

insufficiency of the evidence, as the case may be. Proof beyond a reasonable

doubt is proof that fully satisfies or entirely convinces you of the defendant's

guilt. (N.C.P.I.—Crim. 101.10.)

You are the sole judges of the credibility of each witness. You must

decide for yourselves whether to believe the testimony of any witness. You

may believe all, or any part, or none of what a witness has said on the

stand.

In deciding whether to believe a witness you should use the same

tests of truthfulness that you use in your everyday lives. Among other

things, these tests may include: the opportunity of the witness to see, hear,

know, or remember the facts or occurrences about which the witness

testified; the manner and appearance of the witness; any interest, bias,

prejudice or partiality the witness may have; the apparent understanding

and fairness of the witness; whether the testimony is reasonable; and

whether the testimony is consistent with other believable evidence in the

case. (N.C.P.I.—Crim. 101.15.)

You are the sole judges of the weight to be given any evidence. If you

decide that certain evidence is believable you must then determine the

importance of that evidence in light of all other believable evidence in the

case. (N.C.P.I.—Crim. 101.20.)

The defendant has been charged with impaired driving. (N.C.P.I.—

Crim. 270.20.)

For you to find the defendant guilty of impaired driving, the State must

prove three things beyond a reasonable doubt:

First, that the defendant was driving 1 a vehicle. 2

Second, that the defendant was driving that vehicle upon a [highway]

[street] [public vehicular area] 3 within the State.

And Third, that at the time the defendant was driving that 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. 4 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 his bodily or mental

faculties, or both, to such an extent that thereis an appreciable

impairment of either or both of these faculties. 5]

b) [Had consumed sufficient alcohol that at any relevant time after the

driving the defendant had an alcohol concentration 6 of 0.08 or more

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

blood]. A relevant time is any time after the driving that the driver still

has in his body alcohol consumed before or during the driving]. 7 The

results of a chemical analysis are deemed sufficient evidence to prove

a person's alcohol concentration. 8

c) [Had any amount of [a Schedule I control substance] [metabolites of a

Schedule I controlled substance] in the defendant’s blood or urine].

(Name substance) is a Schedule I control substance or is a metabolite 9

of a Schedule I control substance.]. 10

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

[intoxilizer] [breathalyzer] [blood test] [urine test] 11 was offered to the

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

take the test] (or) [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.) 12

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

about the alleged date, the defendant drove a 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 the driving the

defendant had an alcohol concentration of 0.08 or more] [had any amount of

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

substance] in the defendant’s [blood] [urine]], it would be your duty to

return a verdict of guilty. If you do not so find or have a reasonable doubt as

one or more of these things, it would be your duty to return a verdict of not

guilty.

Members of the jury, you have heard the evidence and the arguments

of counsel. If your recollection of the evidence differs from that of the

attorneys, you are to rely solely upon your recollection. Your duty is to

remember the evidence whether called to your attention or not.

You should consider all the evidence, the arguments, contentions and

positions urged by the attorney(s), and any other contention that arises

from the evidence.

The law requires the presiding judge to be impartial. You should not

infer from anything I have done or said that the evidence is to be believed or

disbelieved, that a fact has been proved or what your findings ought to be. It

is your duty to find the facts and to render a verdict reflecting the truth. All

twelve of you must agree to your verdict. You cannot reach a verdict by

majority vote.

When you have agreed upon a unanimous verdict(s) (as to each

charge) your foreperson should so indicate on the verdict form(s).

NOTE WELL: EXCUSE THE ALTERNATE JUROR.

After reaching the jury room your first order of business is to select

your foreperson. You may begin your deliberations when the bailiff delivers

the verdict form(s) to you. Your foreperson should lead the deliberations.

When you have unanimously agreed upon a verdict (as to each charge) and

are ready to announce [it] [them] your foreperson should record your

verdict(s), sign and date the verdict form(s), and notify the bailiff by

knocking on the jury room door (or otherwise summoning the bailiff). You

will be returned to the courtroom and your verdict will be announced.

Thank you. You may retire and select your foreperson.

NOTE WELL: After the jury retires and before sending the verdict

form(s) to the jury the judge must address the attorneys as

follows:

Before the jury begins deliberation the Court will consider requests for

corrections and additions to the instructions and to other matters you deem

13

appropriate.

Are there any objections or specific requests for corrections or

additions to the instructions?

NOTE WELL: Consider all specific requests and if appropriate

recall the jury and correct or add to the charge. If request(s) for

corrections or additions are rejected, attorneys must be allowed

to make specific objections on the record.

After all specific requests have been submitted and rejected and

the proper notation(s) recorded, hand the verdict form(s) to the

bailiff and instruct the bailiff to deliver [it] [them] to the jury

without comment.

If necessary to return the jury to the courtroom for corrections

or additions to the charge the judge should address the jury as

follows:

Members of the jury, my attention has been properly directed to

instructions necessary to [correct] [supplement] my previous instructions.

I charge you that. . . .

You may retire now and begin your deliberation when you receive the

written verdict form(s).

NOTE WELL: Repeat to the lawyers the question regarding

objections, corrections or additions. If there are further

instructions upon specific requests, follow the same procedure as

before; if not, instruct the bailiff to deliver the verdict form(s) to

the jury.

NOTE WELL: If the jury requests additional instructions after

retiring to deliberate, the trial judge should obtain the jury

requests in writing, confer with the attorneys, and further

instruct the jury if necessary. S v. Privette, 317 N.C. 148 (1986)

holds that it is within the trial court's discretion to determine

whether instructions in addition to those requested should be

given at the same time.

NOTE WELL: It is suggested that requests from the jury should

be reduced to writing, marked as court exhibits, and made part

of the record. In a capital case, the failure to share the jury’s

questions with the defendant denies the defendant the right to

be present at every stage of the proceeding although the State

may be able to prove the error was harmless beyond a

reasonable doubt. State v. Smith, 654 S.E.2d 730 (N.C. Ct. App.

2008).