ASSEMBLY, No. 3989

STATE OF NEW JERSEY

214th LEGISLATURE

INTRODUCED MAY 9, 2011

 


 

Sponsored by:

Assemblywoman† ANNETTE QUIJANO

District 20 (Union)

 

 

 

 

SYNOPSIS

†††† Establishes the crime of negligent vehicular homicide.

 

CURRENT VERSION OF TEXT

†††† As introduced.

††


An Act concerning vehicular homicide, supplementing chapter 11 of Title 2C of the New Jersey Statutes and amending N.J.S.2C:11-5.

 

†††† Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

†††† 1.††† (New section) a.† Criminal homicide constitutes negligent vehicular homicide when it is caused by negligently driving a vehicle in violation of R.S.39:4-50 or vessel in violation of section 3 of P.L.1952, c.157 (C.12:7-46).

†††† b.††† Negligent vehicular homicide is a crime of the third degree, but the presumption of nonimprisonment set forth in subsection e. of N.J.S.2C:44-1 shall not apply to persons convicted of negligent vehicular homicide.

 

†††† 2.††† N.J.S.2C:11-5 is amended to read as follows:

†††† 2C:11-5.† Death by auto or vessel.

†††† a.†††† Criminal homicide constitutes reckless 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 R.S.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, reckless 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 and 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 therefor 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] Reckless 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 as 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.101 (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, an indictment and conviction for aggravated manslaughter under the provisions of subsection a. of N.J.S.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 this subsection shall be in addition to, and not in lieu of, civil forfeiture pursuant to chapter 64 of this title.

(cf:† P.L.2003, c.143, s.1)

 

†††† 3.††† This act shall take effect immediately.

 

 

STATEMENT

 

†††† This bill would establish a new offense of negligent vehicular homicide for killing a person while driving under the influence of drugs or alcohol (DUI).† Specifically, the bill establishes an alternative penalty to assist prosecutors in instances when a driver under the influence is involved in a fatal accident, but because of the circumstances surrounding the accident that driverís actions do not legally rise to the level of criminal recklessness.

†††† Under the bill, criminal homicide constitutes negligent vehicular homicide when it is caused by negligently driving a motor vehicle or operating a boat in violation of the Stateís DUI laws.† Negligent vehicular homicide is a crime of the third degree under the bill.† Third degree crimes generally are punishable by a term of imprisonment of three-to-five years, a fine of up to $15,000, or both.† The bill specifies that the presumption of nonincarceration that normally applies to persons convicted of third degree crimes who have no previous convictions does not apply.† Therefore, a violator would receive a minimum three year term of imprisonment. †††††† A person is considered criminally negligent when the person should be aware of a substantial and unjustifiable risk of such a nature and degree that the person's failure to perceive it involves a gross deviation from the standard of care that a reasonable person would observe in that situation.

†††† Under the bill, DUI drivers who cause a personís death could be prosecuted for negligent vehicular homicide, and would be required to serve a significant jail sentence.