[1] Defendant contends that the trial court erred in failing to grant his request to charge the jury on the misdemeanor offense of death by vehicle. We agree and a new trial is necessary. Death by vehicle under G.S. 20-141.4(a), which applied when these events occurred but has been revised since then as G.S. 20-141.4(a2), is a lesser included offense of the common law felony of involuntary manslaughter, made punishable by G.S. 14-18. The distinction is that the lesser offense does not depend upon the presence of culpable or criminal negligence, it being enough to convict if death proximately results from the violation of a traffic statute or ordinance. State v. Freeman, 31 N.C. App. 93, 228 S.E. 2d 516, rev. denied, 291 N.C. 449, 230 S.E. 2d 766 (1976). In a case similar to the one before us, we held that the trial court’s failure to submit the lesser included offense to the jury as a possible verdict was error that was not cured by a verdict of guilty on the more serious charge. State v. Baum, 33 N.C. App. 633, 236 S.E. 2d 31, rev. denied, 293 N.C. 253, 237 S.E. 2d 536 (1977). In this case, though the evidence presented supports the contention that defendant’s criminal or culpable negligence in operating his car under the influence of intoxicating liquor contributed to the death resulting collision, it is also such that the jury could have found from it that the only act of defendant that proximately contributed to the collision was a mere violation of a speed or other traffic law. We particularly point to certain testimony of Darrell Diamond, whose car was hit by defendant’s car before it caromed or skidded into the other lane of the highway and struck the car the decedent was in. According to Diamond: Upon stopping at the intersection he saw both defendant’s car and the Reese car but thought it was safe to enter the highway and did so, with the result, however, that before his car had traveled more than 90 feet, it was struck by defendant’s car, which “came flying up behind” him “real fast”; and at all times before the first collision defendant’s car was in its proper lane and the Reese car was in its proper lane at all times. From this and other evidence in the case, including the physical evidence surrounding the wreck, the jury could have concluded that defendant’s participation in the collisions that occurred was caused not by inebriation, but by either excessive speed, failing to keep his car under proper control, or failing to maintain a proper lookout, in violation of the *584various statutes pertaining thereto. Thus, an issue as to death by vehicle should have been submitted to the jury.
[2] In sentencing defendant to a longer term than the presumptive sentence for this offense, the court used as a factor in aggravation that: “The defendant had a highly elevated blood alcohol content of approximately .19% by weight, well above that necessary for the underlying driving under the influence violation.” In doing so the court violated the Fair Sentencing Act, since defendant’s intoxication was, in effect, an element of the offense and thus not usable as an aggravating factor. G.S. 15A-1340.4(a)(l)p. Essential to defendant’s conviction of involuntary manslaughter was proof of his criminality or culpability. State v. Freeman, supra. The evidence mainly relied upon by the State to prove that element was the level of defendant’s intoxication. We therefore reverse defendant’s conviction and remand the matter for a new trial in accord with this opinion.
New trial.
Judge BECTON concurs in the result.
Judge Hedrick dissents.