DEATH BY VEHICULAR HOMICIDE—N.J.S.A. 2C:11-5
Under what circumstances does the operator of a motor vehicle have criminal exposure for causing a collision in which a death occurs?
FACT PATTERN
It’s Friday afternoon and you are entertaining an important new client by meeting them for lunch. He orders a martini while waiting for the appetizer so you follow suit. After the salad has been consumed he is ready for a second martini so you each order another. By three (3) P.M., not only do you realize that the client is demanding impossible concessions from your employer, but during the course of your dialogue you have consumed four (4) martinis. Now you are feeling frustrated and on top of it you’ve got to get back to the office pronto and report the day’s events to your boss. The nerve of that guy! You get into your cadillac escalade truck and drive northbound on Main Street at fourty eight (48) mph, nearly twice the speed limit of twenty five (25) mph. As you approach the local middle school on your right, a school bus ahead of you in the northbound lane, stops, puts on its blinking red lights and extends its stop sign, signaling that it is about to unload students. The Honda civic automobile directly in front of you stops for the school bus. Unfortunately, you don’t see the Honda civic and you don’t apply your brakes. Your front bumper collides with the rear bumper of the civic, pushing the civic into the rear bumper of the school bus. The operator of the Honda civic is killed instantly. The police arrive and subsequently place you under arrest for DWI. At the police station it is determined that your alcotest reading (blood alcohol content) is a .26. Have you just committed a serious crime?
DEATH BY AUTO STATUTE
a. “Criminal homicide constitutes vehicular homicide when it is caused by driving a
vehicle or vessel recklessly.
Proof that the defendant fell asleep while driving or was driving after having been without sleep for a period in excess of 24 consecutive hours may give rise to an inference that the defendant was driving recklessly. Proof that the defendant was driving while intoxicated in violation of N.J.S.A. 39:4-50 or was operating a vessel under the influence of alcohol or drugs in violation of section 3 of P.L.1952, c. 157 (C.12:7-46) shall give rise to an inference that the defendant was driving recklessly. Nothing in this section shall be construed to in any way limit the conduct or conditions that may be found to constitute driving a vehicle or vessel recklessly.
b. Except as provided in paragraph (3) of this subsection, vehicular homicide is a
crime of the second degree.
(1) If the defendant was operating the auto or vessel while under the influence of
any intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or
with a blood alcohol concentration at or above the prohibited level as
prescribed in R.S.39:4-50, or if the defendant was operating the auto or vessel
while his driver’s license or reciprocity privilege was suspended or revoked
for any violation of R.S.39:4-50, section 2 of P.L.1981, c. 512 (C.39:4-50.4a)
by the Director of the Division of Motor Vehicles pursuant to P.L.1982, c.85
(C.39:5-30a et seq.), or by the court for a violation of R.S.39:4-96, the
defendant shall be sentenced to a term of imprisonment by the court. The
term of imprisonment shall include the imposition of a minimum term. The
minimum term shall be fixed at, or between, one-third or one-half of the
sentence imposed by the court or three years, whichever is greater, during
which the defendant shall be ineligible for parole.
(2) The court shall not impose a mandatory sentence pursuant to paragraph (1)
of this subsection unless the grounds therefore have been established at a
hearing. At the hearing, which may occur at the time of sentencing, the
prosecutor shall establish by a preponderance of the evidence that the
defendant was operating the auto or vessel while under the influence of any
intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or with
a blood alcohol concentration at or above the level prescribed in R.S.39:4-50
or that the defendant was operating the auto or vessel while his driver’s
license or reciprocity privilege was suspended or revoked for any violation of
R.S.39:4-50, section 2 of P.L.1981, c. 512 (C.39:4-50.4a), by the Director
of the Division of Motor Vehicles pursuant to P.L.1982, c. 85 (C.39:5-30a et
seq.), or by the court for a violation of R.S.39:4-96. In making its findings,
the court shall take judicial notice of any evidence, testimony or information
adduced at the trial, plea hearing, or other court proceedings and shall also
consider the presentence report and any other relevant information.
(3) Vehicular homicide is a crime of the first degree if the defendant was
operating the auto or vessel while in violation of R.S.39:4-50 or section 2 of
P.L.1981, c. 512 (C.39:4-50.4a) while:
(a) on any school property used for school purposes which is owned by or
leased to any elementary or secondary school or school board, or within
1,000 feet of such school property;
(b) driving through a school crossing as defined in R.S.39:1-1 if the
municipality, by ordinance or resolution, has designated the school
crossing as such; or
(c) driving through a school crossing as defined in R.S.39:1-1 knowing that
juveniles are present if the municipality has not designated the school
crossing by such by ordinance or resolution.
A map or true copy of a map depicting the location and boundaries of the area
on or within 1,000 feet of any property used for school purposes which is
owned by or leased to any elementary or secondary school or school board
produced pursuant to section 1 of P.L.1987, c. (C.2C:35-7) may be used in a
prosecution under subparagraph (a) of this paragraph.
It shall be no defense to a prosecution for a violation of subparagraph (a) or
(b) of this paragraph that the defendant was unaware that the prohibited
conduct took place while on or within 1,000 feet of any school property
or while driving through a school crossing. Nor shall it be a defense to a
prosecution under subparagraph (a) or (b) of this paragraph that no juveniles
were present on the school property or crossing zone at the time of the offense
or that the school was not in session.
(4) If the defendant was operating the auto or vessel in violation of R.S.39:4-50 or
section 2 of P.L.1981, c. 512 (C.39:4-50.4a), the defendant’s license to
operate a motor vehicle shall be suspended for a period of between five years
and life, which period shall commence upon completion of any prison sentence
imposed upon that person.
(c) For good cause shown, the court may, in accepting a plea of guilty under
this section, order that such plea not be evidential in any civil proceeding.
(d) Nothing herein shall be deemed to preclude, if the evidence so warrants,
and indictment and conviction for aggravated manslaughter under
the provisions of subsection a. of N.J.S.A.2C:11-4.
As used in this section “auto or vessel” means all means of conveyance
propelled otherwise than by muscular power.
(e) Any person who violates paragraph (3) of subsection b. of this section
shall forfeit the auto or vessel used in the commission of the offense,
unless the defendant can establish at a hearing, which may occur at the
time of sentencing, by a preponderance of the evidence that such
forfeiture would constitute a serious hardship to the family of the
defendant that outweighs the need to deter such conduct by the defendant and others. In making its findings, the court shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing, or other court proceedings and shall also consider the presentence report and any other relevant information. Forfeiture pursuant to the subsection shall be in addition to, and not in lieu of, civil forfeiture pursuant to chapter 64 of this title.”
The answer to the question is YES, you have committed a serious crime (in addition to DWI) because the act of driving while intoxicated plus causing a collision in which a death occurred constitutes death by auto. The element of recklessness makes it a criminal case, although you still have civil exposure for damages as well. N.J.S.A. 39:4-50 (DWI) makes it unlawful to operate a motor vehicle if your blood alcohol content (BAC) is in excess of .08 “per se”. At .26 your BAC is more than three (3) times the legal limit. The statute expressly states that such conduct, in and of itself, gives rise to an inference that the conduct was “reckless”, because when you operated the motor vehicle while (that) intoxicated, you ignored a known risk that your gross deviation from lawful conduct would create the possibility of death or injury to others around you. N..J.S.A. 2C:11-5(a); State v. Jiminez, 257 N.J. Super 567, 608 A.2d 996 (App. Div. 1992); State v. Milligan, 202 N.J. Super 336, 495 A.2d 132 (App. Div.); State v. Casele, 198 N.J. Super 462, 472, 487 A.2d 502 (App. Div. 1985). Additionally, your conduct resulted in a death.
If this were the normal “garden variety” death by auto case, your exposure for a second degree offense would be as follows: In addition to monetary fines up to $150,000.00, plus loss of drivers license for not less than five (5) years and not more than for life, plus the imposition of jail time for a minimum of five (5) years and a maximum of ten (10) years per count, presumptive seven (7) years N.J.S.A. 2C:43-3(a), with an 85% parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; State v. Ferencsik, 326 N.J. Super 228, 741 A.2d 101 (App. Div. 1999), you would be subjected to certain jail time of a minimum mandatory of four (4) plus years before you would be eligible for parole (release), plus the imposition of a criminal record. The DWI would ultimately merge into the death by auto charge as it is a lesser included offense.
However, since your conduct occurred within 1,000 feet of a school zone, the charges would be elevated to a first degree death by auto. Your exposure to monetary fines would be elevated to $200,000.00 and to jail time, if convicted, would be a term of not less than ten (10) years nor more than twenty (20) years, presumptive fifteen (15) years N.J.S.A. 2C:43-3(a), with a parole disqualifier of 85% of the term under NERA.
These are extremely serious cases. If you have been charged with vehicular homicide in connection with a drinking/driving or sleeping/driving related automobile collision, you need to retain a skilled and experienced attorney immediately to obtain a downgrade of the charges or an acquittal.
