STATE OF NEW JERSEY
PRE-FILED FOR INTRODUCTION IN THE 2010 SESSION
Assemblywoman ELEASE EVANS
District 35 (Bergen and Passaic)
Establishes the crime of negligent homicide.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel
An Act concerning criminal negligent homicide, amending N.J.S.2C:2-8 and N.J.S.2C:11-2 and supplementing Title 2C of the New Jersey Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. N.J.S.2C:2-8 is amended to read as follows:
a. Except as provided in subsection d. of this section, intoxication of the actor is not a defense unless it [negatives] negates an element of the offense.
b. When recklessness or negligence establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.
c. Intoxication does not, in itself, constitute mental disease within the meaning of chapter 4.
d. Intoxication which (1) is not self-induced or (2) is pathological is an affirmative defense if by reason of such intoxication the actor at the time of his conduct did not know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong. Intoxication under this subsection must be proved by clear and convincing evidence.
e. Definitions. In this section unless a different meaning plainly is required:
(1) "Intoxication" means a disturbance of mental or physical capacities resulting from the introduction of substances into the body;
(2) "Self-induced intoxication" means intoxication caused by substances which the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know, unless he introduces them pursuant to medical advice or under such circumstances as would afford a defense to a charge of crime;
(3) "Pathological intoxication" means intoxication grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is susceptible.
(cf: P.L.1983, c.306, s.1)
2. N.J.S.2C:11-2 is amended to read as follows:
2C:11-2. Criminal homicide. a. A person is guilty of criminal homicide if he purposely, knowingly, recklessly, negligently or, under the circumstances set forth in section 2C:11-5, causes the death of another human being.
b. Criminal homicide is murder, manslaughter, negligent homicide or death by auto or vessel.
(cf: P.L.1979, c.178, s.20)
3. (New section) Negligent Homicide.
Criminal homicide constitutes negligent homicide when an actor negligently causes the death of another. Negligent homicide is a crime of the third degree, except if the victim is a minor 16 years of age or less and the actor is a parent, resource family parent, a guardian or stands in loco parentis within the household or has a legal duty of care of the victim then negligent homicide is a crime of the second degree.
Notwithstanding the provisions of N.J.S.2C:43-6, if a person is convicted of a crime of the third degree under this section, the sentence imposed shall include a fixed minimum sentence of not less than 18 months during which the defendant shall not be eligible for parole. The presumption of nonimprisonment set forth in N.J.S.2C:44-1 shall not apply to persons convicted under the provisions of this section. The court may not suspend or make any other noncustodial disposition of that person.
If the evidence so warrants, nothing in this section shall be deemed to preclude an indictment and conviction for aggravated manslaughter under the provisions of N.J.S.2C:11-4 or death by auto or vessel under the provisions of N.J.S.2C:11-5.
Notwithstanding the provisions of N.J.S.2C:1-8 or any other provisions of law, a conviction arising under this section shall not merge with a conviction for aggravated manslaughter under the provisions of N.J.S.2C:11-4 or for death by auto or vessel under the provisions of N.J.S.2C:11-5 and a separate sentence shall be imposed upon each such conviction.
Notwithstanding the provisions of N.J.S.2C:44-5 or any other provisions of law, when the court imposes multiple sentences of imprisonment for more than one offense, those sentences shall run consecutively.
4. This act shall take effect immediately.
This bill would establish the crime of negligent homicide and in so doing would add another class of offense to the current criminal homicide provisions in New Jersey 's Criminal Code, Title 2C of the New Jersey Statutes. Currently a person is guilty of criminal homicide if he purposely, knowingly, recklessly or under circumstances set forth in the death by auto statute causes the death of another. This bill would add "negligently" to the list of culpable states for criminal homicide. This bill is intended to address a gap in the law where seriously negligent conduct results in the death of an individual but may not involve sufficient culpability to constitute manslaughter or death by auto or vessel.
An act would constitute negligent homicide when a person is "criminally negligent" and causes the death of another person. Criminal negligence is a degree of negligence which is different than negligence associated with a civil action. Under the provisions of the Criminal Code, a person acts criminally negligently with regard to a material element of an offense when that person "should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the person's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation. . . . " [Emphasis added]. (See: N.J.S. 2C:2-2 setting forth the culpability requirements for the Criminal Code.). By contrast, the negligence associated with a civil action occurs where a person breached a legal duty of care through action or a failure to act.
Under the provisions of the bill, negligent homicide results when a person negligently causes the death of another person. Negligent homicide would be graded as a crime of the third degree, except if the victim is a minor 16 years of age or less and the actor is a parent, resource family parent, a guardian or stands in loco parentis within the household or has a legal duty of care of the victim then negligent homicide is a crime of the second degree.
The bill would impose a mandatory minimum term of imprisonment for the third degree crime of negligent homicide. The mandatory minimum term would be not less than eighteen months during which the defendant would be ineligible for parole. In addition, the presumption of nonimprisonment for a crime of the third degree would not apply to a person convicted of negligent homicide. The bill would also provide that the court cannot suspend or make any other noncustodial disposition of that person.
Nothing in this bill would preclude an indictment and conviction for aggravated manslaughter or death by auto or vessel under the Criminal Code.
Moreover, the bill provides that a conviction for negligent homicide would not merge with a conviction for aggravated manslaughter under the provisions of N.J.S.2C:11-4 or for death by auto or vessel under the provisions of N.J.S.2C:11-5 and a separate sentence shall be imposed upon each such conviction.