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North Carolina Criminal Law 14-17: Second Degree Murder by Vehicle Impaired Driving

1. Definition and Elements of the Crime

 Involuntary Manslaughter Murder is a Common Law Offense. Second-Degree Murder is a criminal charge created by statute within Article 3 of the North Carolina Criminal Law 14-17 pertaining to homicide.

Aspects of Common Law Murder are incorporated into Second Degree Murder as defined by statute. Malice and the mens rea (evil mind) are necessary to make a prima facie case for the offense.

If related to DWI Driving While Impaired, Involuntary Manslaughter may, as a lesser included offense, be charged.

North Carolina Criminal Law 14-17 describes both First-Degree Murder and Second-Degree Murder. Second Degree Murder is classified as a Class B2 Felony.

Second Degree Murder is the unlawful killing, with malice, of another human being. Involuntary manslaughter is an unintentional, unlawful killing of another human being requiring:

  1. The commission of a negligent act to such extent there is criminal culpability; and,
  2. Such act was “A Proximate Cause” of the death of another human being.

Involuntary manslaughter is the unlawful, unintentional killing of a human being by an act done in a culpably negligent way.

To prove the Defendant guilty of Second-Degree Murder by Vehicle, Impaired Driving, the State must prove Beyond a Reasonable Doubt the following essential elements:

  1. The Defendant drove a vehicle
  2. On a street, highway, or public vehicular area in North Carolina
  3. While operating the vehicle, Defendant was involved in a collision or accident
  4. A human being was killed in the collision or accident
  5. The Defendant drove while impaired
  6. The Defendant acted maliciously

To prove the Defendant guilty of Driving While Impaired, the State must prove Beyond a Reasonable Doubt:

  1. The Defendant Drove a vehicle
  2. The Defendant drove on a highway, street, or public vehicular area
  3. The Defendant was:
    1. Under the influence of an impairing substance to such extent there was “appreciable impairment” or
    2. Had a Blood Alcohol Concentration of 0.08 or higher or
    3. Had any amount of a Schedule I controlled substance, including metabolites, in their blood or urine

The essential elements for Common Law Murder include:

  1. The Defendant committed an act that caused the death of another human being
  2. Such act was malicious
  3. The Defendant acted without legal justification or excuse

Malice may be inferred from the act committed. It may be implied or express. The intentional killing of another person is express malice.

Implied malice is when:

  1. The Defendant commits an unlawful act
  2. The natural consequences of the act present a danger to human life
  3. The Defendant acted, knowing or reasonably should have known, the act was dangerous
  4. The Defendant disregarded, consciously, the danger to human life

To prove Second-Degree Murder, the malice is predicated an act that is known to be inherently dangerous. A failure to act, known as an omission, may also be the basis for imputation of malice.

Such omission would be acting in a wanton, reckless manner so as to manifest an “evil mind” that is utterly without regard for the duties of society and human life. Such mens rea is deliberately mischievous, bent on mischief.

A “human being” includes a child born alive who later dies of the inflicted injuries prior to birth.

Voluntary Intoxication is not a valid defense and does not negate the element of malice. As such, Voluntary Intoxication is not an available defense to the crimes of Manslaughter or Second-Degree Murder in North Carolina.

2. Examples

Defendant and his best friend spend the day together drinking on Lake Norman. It’s decided Defendant should drive to get more beer and cigarettes. Both the Defendant and the decedent are grossly impaired.

Decedent, thinking it would be funny, momentarily “jerks” the steering wheel out of Defendant’s hands. The vehicle collides into a bridge abutment, instantly killing the decedent and causing permanent brain injury to the Defendant.

Defendant is taken to the hospital where blood is drawn while he is unconscious. Test results indicate a Blood Alcohol Concentration (BAC) reading of 0.27.

While the decedent’s “jerking” the wheel may be a basis to preclude recovery in a civil cause of action, the Defendant’s inability to recover control of the vehicle may have been affected by his gross impairment. That impairment could be deemed “A Proximate Cause,” of the fatality and therefore prosecuted as a homicide.

Without more, Involuntary Manslaughter would be the appropriate charge.

In the same fact-pattern, Defendant argues with decedent and another back-seat passenger about driving. Decedent attempts to take the vehicle keys from Defendant who states, “You’re not stopping me. I drive better when I’m drunk.” Decedent and passenger decide nonetheless to ride to the store with the Defendant.

While lighting a cigarette, defendant is momentarily distracted and runs slightly off the road. He thereafter over-corrects the steering, crossing the center-line striking another vehicle head on. Defendant’s front-seat passenger and two other occupants in the other vehicle are killed. Defendant’s back-seat passenger survives, giving a statement to police.

Defendant is taken to the hospital. Due to his traumatic brain injury, no blood sample is taken. Emergency personnel report Defendant having a strong odor of alcohol coming from his breath. Defendant’s back-seat passenger describes Defendant as drunk. Defendant has no recollection of the events leading up to the collision.

Defendant’s mens rea is such he may be convicted of three separate counts of Second-Degree Murder in North Carolina. Defendant’s actions are the proximate cause and a proximate cause of the homicides. Defendant’s actions before driving suggest the requisite malice necessary to convict for Murder.

3. Related Offenses

Similar, related offenses may include:

  1. Felony Death by Vehicle
  2. Misdemeanor Death by Vehicle
  3. Involuntary Manslaughter
  4. Driving While Impaired (DWI)
4. Defenses to Murder

As a Common Law Offense, certain Common Law Defenses to Murder may be available including necessity and involuntary intoxication. Voluntary Intoxication is not a defense to Second-Degree Murder by Vehicle Impaired Driving or Involuntary Manslaughter.

Traditional defenses to Driving While Impaired are also available, including lack of impairment, non-operation of a vehicle, and operation on a non-public vehicular area, street, or highway.

5. Penalties

A conviction for violating North Carolina Criminal Law 14-17, Second-Degree Murder by Vehicle Impaired Driving is punished as a Class B2 Felony.

Under the North Carolina Sentencing Guidelines in 15A-1340.17(e1), the maximum sentence for the B2 Felony considers the minimum active term and prior record level of the Defendant.

When the minimum active prison term is 340 or more, the maximum term of incarceration in the Department of Adult Corrections is calculated by adding the minimum term together with an additional 20% of that minimum term, rounded to the next highest month, further adding to that one additional year (12 months).

Calculating maximum and minimum periods of incarceration is notoriously complicated in North Carolina, requiring consideration of factors in aggravation and mitigation. All B2 Felony convictions are punished with lengthy, active prison terms.

6. Criminal Defense for Murder Cases

 Criminal Defense for Murder Cases If you’ve been charged with Murder or face an Indictment for Homicide, do not delay. Immediately retain an experienced Charlotte Criminal Defense Attorney.

Do not give a statement to law enforcement. Do not discuss any aspect of the allegations with anyone for any reason, including friends, family, or insurance agents or their representatives. Assert your Fifth Amendment Rights. Politely request legal counsel. Exercise your right to remain silent. If cannot afford an attorney, ask for a lawyer.

Bill Powers is a former President of the North Carolina Advocates for Justice and a Board-Certified Criminal Law Specialist, as recognized by the National Board of Legal Specialty Certification (NBLSC) and the National Board of Trial Advocacy (NBTA).

Mr. Powers possesses substantial courtroom experience handling Second Degree Murder by Vehicle Impaired Driving matters, including allegations of Involuntary Manslaughter, Felony Death by Vehicle, and Driving While Impaired charges. Mr. Powers is the author of the 2019 North Carolina DWI Quick Reference Guide.

For more information about Murder charges, homicide, and felony death cases in North Carolina, please call our law office immediately and schedule your free consultation. All matters discussed with our Criminal Defense Lawyers is strictly confidential.

Call Charlotte Criminal Defense Lawyer Bill Powers now at 704-342-4357. You may also email Mr. Powers directly at Bill@CarolinaAttorneys.com

Legal representation for Murder charges is available throughout North Carolina and is not limited to the Charlotte-Metro region. Given the severity and consequences of such matters, Mr. Powers is available for consultation on an emergency basis 7 days a week.

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