N.C.P.I.—Crim. 270A.27D

NOTE WELL: This instruction is to be used for offenses

occurring on or after December 1, 2016. See N.C. Gen.

Stat. § 75A-10.3. Use N.C.P.I 270A.25 where the

defendant was operating a vessel while under the

influence of an impairing substance and did not cause

[death] [serious] injury to another.

Use N.C.P.I.—Crim 270A.27C where the defendant has

a previous conviction of impaired boating that did not

cause [death] [serious injury] to another occurring

within seven (7) years of committing the offense of

causing [death] [serious] injury by impaired boating1.

If the defendant admits to a previous conviction of

either [death] [serious injury] to another person by

impaired boating2 or [murder] [manslaughter] and the

basis of the conviction was the unintentional death of

another person while engaged in the offense of

impaired boating, occurring within 7 years of the

current violation, those elements of the offense are

established and no evidence in support thereof may be

adduced by the State. In such case, a transcript of

plea is required for the admission of the previous

conviction.

If the defendant denies a previous conviction of

[death] [serious injury] to another person by impaired

boating or [murder] [manslaughter] and the basis of

the conviction was the unintentional death of another

person while engaged in the offense of impaired

boating occurring within seven (7) years of the current

violation or remains silent, the State must prove the

previous conviction in the fifth and sixth elements of

the offense below. See N.C. Gen. Stat. § 15A-928.

The defendant has been charged with repeat [death] [serious

injury] by impaired boating.

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

prove seven things beyond a reasonable doubt.

First, that on or about the alleged date, the defendant

unintentionally caused [the death of] [serious injury to] the alleged

victim.

Second, that the defendant was engaged in the offense of impaired

boating3; that is the defendant was [operating a [motorboat] [vessel]]

[manipulating [water skis] [a surfboard] [nonmotorized vessel] [(describe

similar device)]].

(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] [consumed] a sufficient

quantity of that impairing substance to cause the defendant

to lose the normal control of the defendant's [bodily] [mental

faculties] [both], to such an extent that there is an

appreciable impairment5 of [either] [both of these faculties.6]]

(b) [after having consumed sufficient alcohol that at any relevant

time after the boating, the defendant had an alcohol

concentration7 of [0.08] [more than 0.08] of alcohol [per 210

liters of breath] [per 100 milliliters of blood].8 A relevant time

is any time after the boating that the driver still has in the

body alcohol consumed [before] [during] the boating]9 the

results of a chemical analysis are deemed sufficient evidence

to prove a person’s alcohol concentration.10

Third, that the defendant was [operating that [motorboat] [vessel]]

[manipulating the [water skis] [surfboard] [nonmotorized vessel] [similar

device (describe device)]] on the waters of this State.11

Fourth, that the defendant’s impaired boating was the proximate

cause of the [death] [serious injury] to the alleged victim.

Fifth, that the defendant did so knowingly.

Sixth, that the defendant had previously been convicted of an

impaired boating offense, in that:

a) [On (name date) in (name court) the defendant [was

convicted of] [pled guilty to] [death] [serious injury] to

another person by impaired boating, that was committed on

(name date) in violation of the law of the state of North

Carolina]]

b) [On (name date) in (name court) the defendant [was

convicted of] [pled guilty to] [[murder] [manslaughter] and

the basis of the conviction was the unintentional death of

another person while engaged in the offense of impaired

boating, that was committed on (name date) in violation of

the law of the state of North Carolina]12

And Seventh, that the previous conviction was within seven (7)

years of the current offense (name date of current offense).

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

about the alleged date, the defendant unintentionally caused [the death

of] [serious injury to] the alleged victim, that the defendant was engaged

in the offense of impaired boating, that is the defendant [operated a

[motorboat] [vessel]] [manipulated [water skis] [a surfboard]

[nonmotorized vessel] [(describe similar device)]] while underway on the

waters of this State [while under the influence of an impairing substance]

[after having consumed sufficient alcohol that the defendant has, at any

relevant time after the boating, an alcohol concentration of [0.08] [more

than 0.08] of alcohol [per 210 liters of breath] [per 100 milliliters of

blood]], that defendant’s impaired boating was the proximate cause of

[the death of] [serious injury to] the alleged victim, that the defendant

did so knowingly, that the defendant had previously been convicted of

[[death] [serious injury] to another person by impaired boating, that was

committed on (name date)]] [[murder] [manslaughter] and the basis of

the conviction was the unintentional death of another person while

engaged in the offense of impaired boating, that was committed on

(name date)]], and that the previous conviction occurred within seven (7)

years of the date of the current offense, 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.