26.10.040 Homicide by Intoxicated Use of Vehicle
(a) Any person who does any of the following:
(1) Causes the death of another by the operation or handling of a vehicle while under the influence of an intoxicant.
(2) Causes the death of another by the operation or handling of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.
(3) Causes the death of another by the operation or handling of a vehicle while the person has a prohibited alcohol concentration, as defined in Title 38.
(4) Causes the death of another by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08.
(5) Causes the death of an unborn child by the operation or handling of a vehicle while under the influence of an intoxicant.
(6) Causes the death of an unborn child by the operation or handling of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.
(7) Causes the death of an unborn child by the operation or handling of a vehicle while the person has a prohibited alcohol concentration, as defined in Title 38
(8) Causes the death of an unborn child by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08.
(b) Penalty for violations of this provision shall be Class 5 Offense
(c) Defenses to the charge:
(1) In any action under this section, the defendant has a defense if he or she proves by a preponderance of the evidence that the death would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant, did not have a detectable amount of a restricted controlled substance in his or her blood, or did not have an alcohol concentration described herein and in Title 38.
(2) In any action that is based on the defendant allegedly having a detectable amount of methamphetamine or gamma-hydroxybutyric acid or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors or gamma-hydroxybutyric acid or delta-9-tetrahydrocannabinol.
