Vehicular Homicide (Death by Auto) in New Jersey

N.J.S.A. 2C:11-5 · Assault, Homicide & Violent Offenses

What the law says

A person commits reckless vehicular homicide when criminal homicide is caused by driving a vehicle or vessel recklessly. The section also provides circumstances that may support an inference of recklessness and circumstances that affect the crime’s degree, imprisonment, license suspension, and forfeiture.

This is an indictable crime. It's prosecuted in the Superior Court, Criminal Part, in the county where it allegedly happened, usually after grand jury review. First-time defendants may be eligible for Pretrial Intervention (PTI).

What the State must prove

To convict, the prosecutor must prove each element beyond a reasonable doubt. Under N.J.S.A. 2C:11-5, that means:

• Criminal homicide was caused by the defendant driving a vehicle or vessel recklessly.
• For first-degree grading, 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) while on school property used for school purposes, or within 1,000 feet of that property; while driving through a school crossing designated by municipal ordinance or resolution; or, at an undesignated school crossing, while knowing juveniles are present.
• For the mandatory sentence under subsection b.(1), the prosecutor must establish at a hearing 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; with a blood alcohol concentration at or above the level prescribed in R.S.39:4-50; or while the defendant’s driver’s license or reciprocity privilege was suspended or revoked for a violation specified in subsection b.(1).
• For the third-degree grading in subsection b.(5), the defendant must prove by a preponderance of the evidence that the defendant did not commit any conduct constituting driving a vehicle or vessel recklessly other than failing to maintain a lane in violation of R.S.39:4-88.

How the charge is graded

• Except as provided in paragraphs (3) and (5) of subsection b., reckless vehicular homicide is a crime of the second degree.
• 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.
• Reckless Vehicular homicide is a crime of the third degree if the defendant proves by a preponderance of the evidence that the defendant did not commit any conduct constituting driving a vehicle or vessel recklessly other than failing to maintain a lane in violation of R.S.39:4-88.

Penalties in the statute

• If the defendant was operating the auto or vessel under any of the circumstances specified in subsection b.(1), the defendant shall be sentenced to a term of imprisonment by the court.
• The term of imprisonment shall include a minimum term 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.
• 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.
• Any person who violates paragraph (3) of subsection b. shall forfeit the auto or vessel used in the commission of the offense, unless the defendant establishes at a hearing by a preponderance of the evidence that forfeiture would constitute a serious hardship to the defendant’s family that outweighs the need to deter such conduct by the defendant and others. Forfeiture is in addition to, and not in lieu of, civil forfeiture pursuant to chapter 64 of this Title.

General sentencing ranges

Unless a statute sets a different penalty, New Jersey's general sentencing laws (N.J.S.A. 2C:43-6, 2C:43-8, and 2C:43-3) set these maximums:

Other rules that can matter

• 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.
• Proof that the defendant was operating a hand-held wireless telephone while driving a motor vehicle in violation of section 1 of P.L.2003, c.310 (C.39:4-97.3) may give rise to an inference that the defendant was driving recklessly. Proof that the defendant failed to maintain a lane in violation of R.S.39:4-88 may give rise to an inference that the defendant was driving recklessly.
• Nothing in the section limits the conduct or conditions that may be found to constitute driving a vehicle or vessel recklessly.
• The court shall not impose a mandatory sentence pursuant to subsection b.(1) unless the grounds have been established at a hearing, which may occur at the time of sentencing. In making its findings, the court shall take judicial notice of 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.
• A map or true copy of a map depicting the location and boundaries of the area on or within 1,000 feet of school property may be used in a prosecution under subsection b.(3)(a).
• It is no defense to a prosecution under subsection b.(3)(a) or (b) that the defendant was unaware the prohibited conduct took place on or within 1,000 feet of school property or while driving through a school crossing. It is also no defense under those subparagraphs 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.
• For good cause shown, the court may, in accepting a plea of guilty under this section, order that the plea not be evidential in any civil proceeding.

Common defense strategies

Every case turns on its facts, but defenses we often explore include:

• Self-defense or defense of others under N.J.S.A. 2C:3-4 and 2C:3-5, when the force used was reasonable
• Challenging the level of injury the State alleges, which often decides whether a charge is simple or aggravated
• Witness credibility, inconsistent statements, and video that contradicts the complaint
• Lack of the required mental state (purposely, knowingly, or recklessly)
• Suppression of statements taken in violation of Miranda

What to do right now

1. Don't discuss the facts with police, the alleged victim, or anyone on a jail phone or social media.
2. Write down everything you remember, including names, times, and locations.
3. Keep every document you received, such as the complaint, summons, and release conditions.
4. Follow all release and no-contact conditions exactly.
5. Call a New Jersey criminal defense lawyer before your first court date.

How we help

Edward G. Appel has defended New Jersey clients since 1988 in municipal and Superior Courts in all 21 counties. We review the discovery, look for weaknesses in the State's case, file motions where they're warranted, and push for dismissals, downgrades, or diversion before you face a trial. Call 856-856-2373 for a free, confidential consultation about your Vehicular Homicide (Death by Auto) charge.

Related charges

• Murder →
• Manslaughter →
• Strict Liability Vehicular Homicide →
• Simple Assault →
• Aggravated Assault →
• Assault by Auto →
• Terroristic Threats →
• Stalking →

Disclaimer: This page is general information about New Jersey law, not legal advice, and doesn't create an attorney-client relationship. Prior results don't guarantee a similar outcome.