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Felony Death by Vehicle

Felony Death by Vehicle Felony Death by Vehicle charges are what criminal lawyers may refer to as a, “Case within a Case.” That’s because, generally speaking, there are two hurdles the State must overcome by proof Beyond a Reasonable Doubt:

  1. The State must first prove the Defendant guilty of impaired driving in violation of N.C.G.S. 20-138.1 or N.C.G.S. 20-138.2; and,
  2. The prosecutor must thereafter prove the accused’s impaired driving was a proximate cause in the fatality of another.

As such, DWI in North Carolina is deemed a predicate offense to Felony Death by Vehicle. That’s true also for Felony Serious Injury by Vehicle, which is a separate, but very similar criminal charge.

Indeed, the difference between the two charges involves a vehicular homicide, which is the wrongful death of another human being vs. serious bodily injury. The prima facie elements otherwise remain the same.

Proof of Impaired Driving

The Assistant District Attorney bears the Burden of Proof to present evidence of each and every element of the offense. That “burden” is the highest legal standard of proof and applies to all criminal offenses in both State and Federal Court.

The Defendant bears no Burden of Proof in criminal charges. She or he is not required to present evidence or provide testimony.

DWI in North Carolina and proof of “impairment” must be proven to the satisfaction of the Finder of Fact. Under the NC Criminal Laws, in District Court the Finder of Fact is the District Court Judge.

Essential Elements of Felony Death by Vehicle

In Superior Court, the Finder of Fact has traditionally been a jury of your peers. Due to a recent Constitutional Amendment, you may waive the right to a trial by jury.

Such a waiver must be voluntary and cannot be compelled.

The State can proceed under any one of three different legal theories of impairment. The ADA (the prosecutor) is limited only to the fact pattern presented in the case at hand.

  1. Appreciable Impairment - Driving under the influence (DUI) of alcohol or other impairing substance is illegal if a driver is “appreciably impaired.” Appreciable impairment is noticeable impairment and something that can be described. “Drunk Driving” or “Drunken Driving” need not be proven. Impaired driving is not the same thing as drunk driving. It’s a much lower standard. One must only lose the normal control of their physical or mental faculties to the extent that it may be appreciated or noticed.
  2. BAC of 0.08 or Higher – The State may present evidence that at a time relevant to driving, the Defendant had a Blood Alcohol Content of .08 or higher. Proof may be presented by way of blood, breath, or urine testing. The Finder of Fact is not bound by that reading. The jury is not required to convict based on the .08 reading. It is required to consider the BAC together any other evidence presented as to impairment.
  3. Schedule I Controlled Substances – The prosecutor may present scientific evidence of either urine or blood tests that indicate the existence of a Schedule I Controlled Substance. Active ingredients are not required. The State may proceed with evidence of metabolites of any Schedule I drug.

Of course, the State must also prove the Defendant operated a vehicle on a public highway, street, or PVA public vehicular area while impaired.

Felony Death by Vehicle Essential Elements

Presenting evidence relevant to a prosecution for DWI also covers several other essential elements to the Felony Death by Vehicle.

Breathalyzer Tests in NC

The State also bears the legal burden to prove a fatality occurred and that the Defendant’s driving was “a proximate cause” in the wrongful death of another.

Such matters are, by definition, “accidental” and are a creation of statute. Felony Death by Vehicle is separate and distinct from Second-Degree Murder and Involuntary Manslaughter.

Both murder and manslaughter are Common Law offenses and remain in effect in North Carolina. Murder is related to malice, the “evil mind” behind a criminal offense. Manslaughter involves evidence of criminal negligence.

“A Proximate cause” is not the sole or only cause in the car accident that results in the death of another human being. It can be one of many causes. It therefore does not have to be the last or primary cause in the accident.

The State need only prove DWI Driving While Impaired was one of the causes of the death of another.


While traveling north on Highway 13 in Bertie County on his way to Ahoskie in Hertford County, the Defendant swerved to avoid an improperly marked construction detour.

Numerous prior car accidents have taken place in the same stretch of roadway. Defendant was also speeding at the time, overcorrected, and crossed the center-line, striking another oncoming vehicle head on.

The driver of the opposing traffic was killed instantly in the collision. Defendant’s passenger was also seriously injured in the wreck, requiring surgery, and substantial post-operative physical therapy.

Defendant consented a breath test at the jail, with the results indicating a BAC of 0.08. The charging officer performed no Standardized Field Sobriety Tests, but noted in the accident report, “Strong odor of alcohol, red glassy eyes, and slurred speech.”

The Defendant was charged with Driving While Impaired, Felony Serious Injury by Vehicle, and Felony Death by Vehicle.

A conviction for all three criminal offenses would be possible, as the Defendant’s impaired driving was a proximate in both the fatality of the driver of the other vehicle and the serious bodily injury of his passenger.

Impairment could be proven under either the Appreciable Impairment prong or the 0.08 or higher legal standards in North Carolina. The prosecutor is not limited to making one legal argument over another.

In the event the Finder of Fact returns guilty verdicts to all three charges, the Judge would be required to set aside the DWI verdict. The accused cannot be sentenced twice for the same illegal act under the Fifth Amendment to the Constitution.

Outer Banks Criminal Defense Attorney Danny Glover

Felony Death by Vehicle Felony Death by Vehicle is a Class D Felony under the NC Sentencing Guidelines and but for a limited, special exception, normally mandates an ACTIVE prison term in the Department of Adult Corrections.

As you might imagine, that’s serious stuff. It’s imperative you speak with an experienced OBX criminal defense attorney without delay. Politely exercise your legal rights. Remain silent and ask for a defense lawyer.

Timing can be key with any felony criminal charge. It makes sense to call an attorney. Call now to schedule your free legal consultation with Danny Glover. You may also reach him by email

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