N.C.P.I.—Crim. 270.25A

NOTE WELL: This instruction applies to offenses

committed on or after December 1, 2006. For offenses

committed before that date, use N.C.P.I.—Crim.

270.25.

The Court has several options on how to proceed,

including adding the aggravating factor as an element

of the offense, bifurcating the proceeding, or in the

absence of the jury, arraigning the defendant upon the

special indictment or information and advising the

defendant that the defendant may admit the

aggravating factor alleged, deny it, or remain silent.

For procedural guidance, see, e.g., N.C. Gen. Stat. §

15A-928. In the event the defendant admits the

aggravating factor(s), a record of the plea should be

made and preserved. See N.C. Gen. Stat. § 15A-1026.

Use this instruction only if the defendant denies a

previous conviction or remains silent. If the defendant

admits the previous convictions, use N.C.P.I.—Crim.

270.20A. (And see N.C. Gen. Stat. § 15A-928).

If the defendant admits to having been convicted

within the preceding 10 years of three or more offenses

involving impaired driving, that element of the offense

is established and no evidence in support thereof may

be adduced by the State. If the defendant denies

having been convicted within the past ten years of

three or more offenses involving impaired driving or

remains silent, the State must prove the fourth

element of the offense charged before the jury as part

of its case. (See N.C. Gen. Stat. § 15A-928).

The defendant has been charged with (habitual)1 impaired driving.

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 driving2 a vehicle.3

Second, that the defendant was driving that vehicle upon a

[highway] [street] (or) [public vehicular area] within the state.4

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 alternatives 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

the driving the defendant had an alcohol concentration8 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 the driver’s body alcohol

consumed before or during driving].9 The results of a chemical

analysis are deemed sufficient evidence to prove a person's

alcohol concentration.10

c.[Had any amount of a [Schedule I controlled substance]

[metabolites of a Schedule I controlled substance] in his/her

blood or urine]. (Name substance) is a Schedule I controlled

substance or is a metabolite11 of a Schedule I controlled

substance.].12

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

[intoxilizer] [breathalyzer] [blood test] [urine test]13 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.)14

And Fourth, that at the time the defendant was driving while

impaired, the defendant had been convicted of the following three (or

more) offenses, which all involve impaired driving, within the past 10

years of the dates of this offense:

1.On (name date), the defendant in (name court) [was convicted of]

[plead guilty to] the offense of (name offense involving

impaired driving), that was committed on (name date); and

2.On (name date), the defendant in (name court) [was convicted of]

[plead guilty to] the offense of (name offense involving

impaired driving), that was committed on (name date); and

3.On (name date), the defendant in (name court) [was convicted of]

[plead guilty to] the offense of (name offense involving

impaired driving), that was committed on (name date).

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 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] and that:

1.On (name date), the defendant in (name court) [was convicted of]

[plead guilty to] the offense of (name offense involving

impaired driving), that was committed on (name date); and

2.On (name date), the defendant in (name court) [was convicted of]

[plead guilty to] the offense of (name offense involving

impaired driving), that was committed on (name date); and

3.On (name date), the defendant in (name court) [was convicted of]

[plead guilty to] the offense of (name offense involving

impaired driving), that was committed on (name date),

and that all of these convictions occurred within the past 10 years of this

offense for which the defendant is currently charged, 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 will not return a

verdict of guilty of habitual impaired driving, but would consider whether

the defendant is guilty of impaired driving which differs from habitual

impaired driving in that the State need not prove that the defendant [was

convicted of] (or) [plead guilty to] an offense involving impaired driving

at least three times.

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 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.