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