North Carolina Criminal Law 20-141.4: Felony Serious Injury by Vehicle

Proof of impairment need not be limited to any one of the factors, where the Finder of Fact may find more than one as may be appropriate. “Appreciable Impairment” is that which is noticeable or discernible by observation.

One need not be “drunk.”

All “drunk drivers” are said to be impaired, whereas appreciable impairment is not necessarily “drunken driving.”

As such, substantial or gross impairment is not necessary to prove DWI in North Carolina. N.C.G.S. 20-138.1 defines “driving under the influence,” (the traditional nomenclature for DUI charges) as appreciable impairment.

Defendant’s impaired driving resulting in serious bodily injury must be “A Proximate Cause” of the accident. A Proximate Cause is not the sole or only cause. It may be a cause, together with other causes that took place at the same time, that resulted in the injury of another.

Serious bodily injury is a legal term of art. Minor injuries would not rise to the level of serious injury. Normally a serious bodily injury is that where there is permanent injury, bodily disfunction, and/or that could have resulted in the death of another human being.

Other similar or related offenses include:

1. Aggravated Felony Serious Injury by Vehicle
2. Felony Death by Vehicle
3. Misdemeanor Death by Vehicle
4. Second-Degree Murder by Vehicle Impaired Driving
5. Involuntary Manslaughter
6. Driving While Impaired
7. Assault with Deadly Weapon Inflicting Serious Injury

Defendant is lawfully prescribed Oxycodone for pain management associated with a compressed lower-lumbar vertebra. Nerve impingement results in lack of feeling, numbness, and balance issues.

Defendant is involved in a multi-vehicle car accident on I-77 in Mecklenburg County, where the Defendant is not at fault. Another vehicle struck the Defendant’s vehicle in the rear, causing substantial damage to both vehicles and loss of consciousness to Defendant.

The driver of the vehicle that struck defendant suffered a Traumatic Brain Injury (TBI), losing sight in one eye.

North Carolina Highway Patrol Officers respond to the scene of the accident. Defendant is unable to perform Standardized Field Sobriety Tests (SFST). Troopers note an odor of alcohol about Defendant’s person. Defendant is not arrested, but taken to a local hospital for treatment. As part of medical diagnoses, Defendant’s blood is sampled and tested.

Trooper note in their DWIR (Driving While Impaired Report) and associated accident report, Defendant appears to be “shaken up” after the wreck but “otherwise normal.”

Test results indicate a blood alcohol concentration of .05 for ethanol (drinking alcohol). Test results further show the existence of a metabolite of Oxycodone in Defendant’s blood.

Without more, Defendant should not be convicted of impaired driving or felony serious injury by vehicle.

Oxycodone, while an impairing substance, is a Schedule II controlled substance under the North Carolina Controlled Substance Act. As such, impairment by a Schedule I controlled substance is inapplicable.

Defendant further consumed ethyl alcohol, which is also an impairing substance. The BAC reading is below that normally necessary to prove impairment, that being a .08 or higher.

While a combination of a Schedule II substance, Oxycodone, and alcohol most certainly could result in appreciable impairment, there are no other indicators of appreciable impairment. The Defendant either could not perform dexterity tests and/or Troopers failed to conduct SFST Standardized Field Sobriety Tests.

No “appreciable impairment” is described, only an unparticularized odor of alcohol is indicated with no other documentation of impairment of mental or physical faculties due to the consumption on an impairing substance.

Furthermore, Defendant’s driving did not cause the car accident. The victim in the accident suffered what would likely be deemed a serious bodily injury, the Traumatic Brain Injury and loss of vision.

A conviction for Felony Serious Injury by Vehicle would be tenuous at best, as the predicate offense of DWI Driving While Impaired cannot be proven Beyond a Reasonable Doubt. Further, the victim’s injuries, while serious, were not a proximate cause of Defendant’s driving.

Defenses to impaired driving exist, including:

1. Non-Operation of a Vehicle
2. Non-Impairment / Not Guilty of Impaired Driving
3. Lack of Causality
   1. A Probable Cause
4. Lack of Serious Bodily Injury

Traditional Common Law defenses have been found to apply to North Carolina DWI Charges, including:

1. Necessity Defenses
   1. Self-Defense
   2. Defense of Others
2. Involuntary Intoxication
   1. Automatism

If the person charged with the criminal offense, the Defendant, did not cause the car accident (vehicle collision) that resulted in serious bodily injury to another human being, she or he would not be guilty of North Carolina Criminal Law 20-141.4, Felony Serious Injury by Vehicle.

Voluntary Intoxication is not a defense to Felony Serious Injury by Vehicle in North Carolina.

Felony Serious Injury by Vehicle in violation of North Carolina Criminal Law 20-141.4(b)(4) is classified as a Class F Felony offense in North Carolina.

Pursuant to the Sentencing Guidelines, the maximum period of incarceration in the Department of Adult Corrections (DAC) for a Class F Felony is 59 months imprisonment. Intermediate or Active terms are indicated, subject to the Defendant’s Prior Record Level (PRL) for prior convictions.

Other penalties include Supervised Probation, fines, costs of court, supervision fees, restitution, community service, house arrest, electronic monitoring, alcohol and/or drug assessment, treatment, continuous alcohol monitoring (SCRAM).

If the Finder of Fact finds the Defendant Not Guilty of the predicate offense of Driving While Impaired, the Court must set aside any conviction of Felony Serious Injury by Vehicle.

If convicted of impaired driving, pursuant to the Double Jeopardy clause of the Fifth Amendment, the Defendant cannot be sentenced for both DWI and Felony Serious Injury by Vehicle.

As such, the Court must similarly set aside the judgment for DWI and sentence only for the felony offense.

If you have been arrested for Felony Serious Injury by Vehicle or Aggravated Serious Injury by Vehicle, politely assert your Fifth Amendment Rights to remain silent and to an attorney.

Thereafter, it’s imperative you seek immediate assistance from a Charlotte Criminal Defense Lawyer.

With over 26 years practical courtroom experience, Charlotte Criminal Defense and a NBTA/NBLSC National Board of Trial Advocacy Board-Certified Criminal Law Specialist, Attorney Bill Powers understands the complexities and intricacies of criminal charges involving murder, manslaughter, death by vehicle, and serious injury by vehicle charges in North Carolina.

For more information about Felony Serious Injury by Vehicle charges, call now to schedule your free consultation. Contact the North Carolina Criminal Defense Lawyers at the Powers Law Firm PA now at: 704-342-4357.

You may also reach Bill Powers directly, by email, at: Bill@CarolinaAttorneys.com

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