N.C.P.I.—Crim. 270.21

NOTE WELL: This instruction is to be used for offenses

committed before December 1, 2006. For offenses committed on

or after that date, use N.C.P.I.—Crim. 270.21A.

NOTE WELL: This offense is not a lesser included offense of

impaired driving under G.S. 20-138.1, but if a person is

convicted under this section and of an offense involving impaired

driving under 20-138.1 arising out of the same transaction, the

aggregate punishment imposed by the Court may not exceed the

maximum punishment applicable to the offense involving

impaired driving under G.S. 20-138.1.

The defendant has been charged with impaired driving of a commercial

vehicle.

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

prove three things beyond a reasonable doubt:

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

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

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

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 both alternatives (A) and (B), instructions on both

alternatives should be given.

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

substance) is an impairing substance. 4 The defendant is under

the influence of an impairing substance when the defendant has

[taken] [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.]

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

driving the defendant had an alcohol concentration of 0.04 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].

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

about the alleged date, the defendant drove a commercial vehicle on a

[highway] [street] [public vehicular area] in this state and that when the

defendant did 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 0.04 or more], it

would be your duty to return a verdict of guilty of impaired driving of a

commercial vehicle. If you do not so find or if you have a reasonable doubt

as to one or more of these things, you would not return a verdict of guilty of

impaired driving of a commercial vehicle.

If you do not find the defendant guilty of impaired driving of a

commercial vehicle, you must determine whether he is guilty of operating a

commercial vehicle after consuming alcohol. 5 Operating a commercial

vehicle after consuming alcohol differs from impaired driving of a commercial

vehicle in that the State need prove only that the defendant had consumed

sufficient alcohol that at any relevant time after driving the defendant had

an alcohol concentration greater than 0.00 but less than 0.04.

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

about the alleged date the defendant drove a commercial vehicle on a

[highway] [street] [public vehicular area] in this state and that when the

defendant did so the defendant had consumed sufficient alcohol that at any

relevant time after driving the defendant had a blood alcohol concentration

of greater than 0.00 and less than 0.04, it would be your duty to return a

verdict of guilty of operating a commercial vehicle after consuming alcohol.

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.