N.J. Model Criminal Jury Charge, N.J.S.A. 2C:11-5

Revised 4/20/20

RECKLESS VEHICULAR HOMICIDE

(RECKLESS WITH DRIVING WHILE INTOXICATED OR REFUSAL TO SUBMIT TO

A BREATHALYZER TEST)

(N.J.S.A. 2C:11-5)

The defendant (Name) is charged in count __________ with the crime of reckless

vehicular homicide. The indictment alleges:

(READ APPROPRIATE COUNT OF INDICTMENT)

The statute upon which this charge is based provides:

Criminal homicide constitutes reckless vehicular homicide when it

is caused by driving a vehicle (or vessel) recklessly.

In order for you to find the defenda nt guilty of this crime, the State must prove the

following elements beyond a reasonable doubt:

1. That the defendant was driving a vehicle [or vessel];1

2. That the defendant caused the death of (name victim); and

3. That the defendant caused such dea th by driving the vehicle [or vessel]

recklessly.

In order to find that the defendant caused (victim's) death, you must find that (victi m)

would not have died but for defendant's conduct.2

[NOTE: In cases where Causation - Removal of Life Support is an i ssue, the jury

should be instructed as follows:

You have heard testimony that on [date], (insert victim’s name) was taken off life

support and that he/she died at some point after this was done. Should you find beyond a

1 N.J.S.A. 2C:11-5d provides: “As used in this section, ‘auto or vessel’ means all means of conveyance

propelled otherwise than by muscular power.”

2 N.J.S.A. 2C:2-3a(1). If proximate cause is an issue, N.J.S.A. 2C:2-3c should be charged.

RECKLESS VEHICULAR HOMICIDE

(DEATH BY AUTO OR VESSEL WITH DWI OR REFUSAL)

(N.J.S.A. 2C:11-5)

reasonable doubt that (insert victim’s name) died from medical complications that resulted from

injuries caused by defendant’s actions, the removal of life support, in this case (method of

removal), is not an intervening cause that relieves defendant of any criminal liability for those

actions.3 That is, if defendant’s ac tions set in motion (insert victim’s name) need for life

support, without which death would result naturally, then the causal link between defendant’s

action and the death of (insert victim’s name) was not bro ken by an unforeseen, extraordinary

act when (insert victim’s name) was removed from life support and then expired, unless there

was an intervening volitional act of another.]4

[CHARGE IN ALL CASES]

A person acts recklessly when he/she consciously disregards a substantial and

unjustifiable risk that death wil l result from his/her conduct. The risk must be of such a nature

and degree that, considering the nature and purpose of the defendant's conduct and the

circumstances known t o him/her, disregard of the risk involves a gross deviation from the

standard of conduct that a reasonable person would observe in the defendant's situation.

In other words, in order for you to find that the defendant drove a vehicle [or vess el]

recklessly, the State must prove beyond a reasonable doubt tha t the defendant was aware he/she

was operating a vehicle [or vessel] in such a manner or unde r such circumstances as to create a

substantial and unjustifiable risk of death to another. The State must also prove beyond a

reasonable doubt that the defendant consciously disregarded this risk and that the disregard of the

risk was a gross deviation fr om the way a reasonab le person would have conducted

3 State v. Pelham, 176 N.J. 44, 455-456 and n. 2 (2003).

4 Pelham, 176 N.J. at 467.

RECKLESS VEHICULAR HOMICIDE

(DEATH BY AUTO OR VESSEL WITH DWI OR REFUSAL)

(N.J.S.A. 2C:11-5)

himself/herself in the situation.

In determining whether the State has proven beyond a reasonable doubt that defendant

acted recklessly, defendant’s unawareness of a risk, due to self -induced intoxication 5, is

immaterial.6 In other words, you may find that the State has p roven recklessness beyond a

reasonable doubt even though the defendant was unaware of a ri sk of which he/she would have

been aware were he/she not intoxicated.7

Recklessness is a condition of the mind that cannot be see n and th at can often be

determined only from inferences from conduct, words, or acts. It is not necessary for the State to

produce a witness to testify that the defendant stated that he/she acted with a particular state of

mind. It is within your pow er to find that proof of recklessness has been furnished beyond a

reasonable doubt by inferences that may arise from the nature of the acts and circumstances

surrounding the conduct in question.

[WHERE A VIOLATION OF THE MOTOR VEHICLE STATUTES

IS ALLEGED, ADD THE FOLLOWING:]

The State alleges the defendant’s conduct involved [a] violation[s] of the motor vehicle

laws of this State. Specifically, it is alleged that the defendant [list motor vehicle violations

alleged and their elements] . It may be necessa ry for you to determin e [Choose as

appropriate: (whether defendant operated a motor vehicle while in violation of New Jersey’s

5 There is no legal distinction between intoxication resulting from alcohol use and that resulting

from drug use. Cannel, New Jerse y Criminal Code Annotated , Comment 2 to N.J.S.A. 2C:2-8 (Gann

2004) (citing State v. Sette , 259 N.J. Super. 156, 173 -74 (App. Div. 1992), certif. denied, 130 N.J. 597

(1992); State v. Green, 318 N.J. Super. 361, 370 (App. Div. 1999), aff’d o.b., 163 N.J. 140 (2001).

6 N.J.S.A. 2C:2-8b. For the exact s tatutory definition of self -induced intoxication, please see the

full text of N.J.S.A. 2C:2-8b.

7 1971 Code Commentary to N.J.S.A. 2C:2-8 as reproduced in Cannel, Comment to N.J.S.A. 2C:2-

8

RECKLESS VEHICULAR HOMICIDE

(DEATH BY AUTO OR VESSEL WITH DWI OR REFUSAL)

(N.J.S.A. 2C:11-5)

Driving While Intoxicated statute and/or whether defendant thereafter refused to submit to a

breathalyzer examinatio n as required by New Jersey law) / (whether defendant violated the

statute regarding using a hand -held wireless communication device ) / (whether defendant failed

to maintain a lane)], as I will explain shortly. However, with (that/those) possible exception(s),

whether a defendant is guilty or not guilty of a motor vehicle offense will be determined by an

appropriate court.8 It is not your job to decide whether he/she is guilty or not guilty of any motor

vehicle offense other than [Choose as appropriate: (Driving while Intoxicated and/or refusal) /

(using a hand -held wireless communication device ) / (failing to maintain a lane )]. Rather, you

may consider the evidence that he/she committed [a] motor vehicle offense[s] in deciding

whether he/she was driving recklessly.

[CHARGE WHERE APPROPRIATE: DRIVING WHILE INTOXICATED]

You may draw an inference that defendant was driving recklessly if you are satisfied that

he/she was driving while intoxicated in violation of New J ersey’s Driving While Intoxicated

statute.9

In order for you to find that the defendant violated the Driving While Intoxicated

statute10, the State must prove beyond a reasonable doubt that the defendant operated a motor

vehicle [or vessel] while under the influence of intoxicating liquor, narcotic, hallucinogenic or

habit-producing drug, or operated a motor vehicle with a blood alcohol conc entration of 0.08%11

8 State v. Muniz, 118 N.J. 319 (1990).

9 N.J.S.A. 2C:11-5a.

10 The charge will have to be modified where the State alleges refusal to submit to a breathalyzer

examination under N.J.S.A. 39:4-50.4a.

11 Note that N.J.S.A. 39:4-50 was amended, effective January 20, 2004 , and that for crimes alleged

to have been committed before that date a blood alcohol concentration of 0.10% will be required.

RECKLESS VEHICULAR HOMICIDE

(DEATH BY AUTO OR VESSEL WITH DWI OR REFUSAL)

(N.J.S.A. 2C:11-5)

or more by weight of alcohol in his/her blood.12

However, you are never required o r compelled to draw this inference. It is your

exclusive province to det ermine whether the facts and circumstances shown by the evidence

support any inference and you are always free to accept or reject the inference as you deem

appropriate.

[CHARGE WHERE APPROPRIATE: LACK OF SLEEP]

In this case, the State alleges the defendant may have fallen asleep while driving [or

that defendant was driving after having been without sleep for a period in excess of 24

consecutive hours]. Proof that defendant may have fallen asleep [or that defendant was driving

after having been without sleep for a period in excess of 24 consecutive hours] may give rise

to an inference that defendant was driving recklessly. 13 However, you are never required or

compelled to draw this inf erence. It is your exclusive province to determine whether the facts

and circumstances shown by the evidence support any inference and you are always free to

accept or reject the inference as you deem appropriate.

[CHARGE WHERE APPROPRIATE:

HAND-HELD WIRELESS COMMUNICATION DEVICE]

The State alleges that the defendant was using a hand -held wireless telephone while

driving a motor vehicle in violation of New Jersey law.14 The pertinent part of that law states that

12 N.J.S.A. 39:4 -50. There is a substantial body of case law interpreting this statute. Where a

violation of N.J.S.A. 39:4 -50 is an element of the offense, such as when the defe ndant is charged with

First Degree Reckless Vehicular Homicide pursuant to N.J.S.A. 2C:11 -5.3b(3), see the final portion of

this charge.

13 N.J.S.A. 2C:11-5a.

14 The statute does not apply to the use of a c itizen’s band radio or two-way radio by an operator of

a moving commercial motor vehicle or authorized emergency vehicle on a public road or highway.

RECKLESS VEHICULAR HOMICIDE

(DEATH BY AUTO OR VESSEL WITH DWI OR REFUSAL)

(N.J.S.A. 2C:11-5)

the use of a wireless telephone or electronic communication device by an operator of a moving

motor vehicle on a public road or highway is unlawful except when the telephone is a hands -free

wireless telephone or the electronic device is used hands -free, provided that the actual placement

of the phone in the vehicle does not interfere with the operation of federally required safety

equipment, and the operator exercises a high degree of caution in the operation of the motor

vehicle.15

[CHOOSE AS APPROPRIATE]

The operator of a motor vehicle may use a han d-held wireless t elephone while driving

with one hand on the steering wheel only if:

• The operator has reason to fear for his/her life or safety, or believes that a criminal

act may be perpetrated against himself or another person.16

• The operator is using the telephone to report to appropriate authorities a fire,

traffic accident, a serious road hazard or medical or hazardous materials

emergency, or to report the operator of another motor vehicle who is driving in a

reckless, careless or otherwise unsafe manner or who appears to be driving under

the influence of alcohol or drugs.17

[RESUME CHARGE ON HAND HELD WIRELESS COMMUNICATION DEVICE]

“Hands-free wireless telephone” means a mobile telephone that has an internal feature or

function, or that is equipped with an attachment or addition, whether or not permanently part of

N.J.S.A. 39:4-97.3.

15 N.J.S.A. 39:4-97.3a.

16 N.J.S.A. 39:4-97.3b(1).

17 N.J.S.A. 39:4-97.3b(2).

RECKLESS VEHICULAR HOMICIDE

(DEATH BY AUTO OR VESSEL WITH DWI OR REFUSAL)

(N.J.S.A. 2C:11-5)

such mobile telephone, by which a user engages in a conversation without the use of either hand;

provided, however, this definition shall not preclude the use of either hand to activate, deactivate,

or initiate a function of the telephone.18

“Use” of a wireless telephone or electronic communication device shall include, but shall

not be limited to, talking or listening to another person on the telephone, text messaging, or

sending an electronice message via the wireless telephone or electronic communication device.19

Proof that defendant used a hand-held wireless communication device in violation of this

motor vehicle statute may give rise to an inference that defendant was driving recklessly.20

However, you are never required or compelled to draw this inference. It is your exclusive

province to determine whether the facts and circumstances shown by the evidence support any

inference and you are always free to accept or reject the inference as you deem appropriate.

[CHARGE WHERE APPROPRIATE:

FAILURE TO MAINTAIN LANE]21

The State alleges that the defendant failed to maintain a lane while operating a motor

vehicle, in violation of N.J.S.A. 39:4-88. That section of the law states,

When a roadway has been divided into clearly marked lanes for traffic, drivers of

vehicles shall obey the following regulation(s):

[CHOOSE AS APPROPRIATE]

a. A vehicle shall normally be driven in the lane nearest the right-hand

edge or curb of the roadway when that lane is available for travel, except when

overtaking another vehicle or in preparation for a left turn.

18 N.J.S.A. 39:4-97.3b(2).

19 N.J.S.A. 39:4-97.3b(2).

20 N.J.S.A. 2C:11-5a.

21 N.J.S.A. 2C:11-5a. This section should only be read for offenses that occurred after January 16,

2018.

RECKLESS VEHICULAR HOMICIDE

(DEATH BY AUTO OR VESSEL WITH DWI OR REFUSAL)

(N.J.S.A. 2C:11-5)

b. A vehicle shall be driven as nearly as practicable entirely within a

single lane and shall not be moved from that lane until the driver has first

ascertained that the movement can be made with safety.

c. Upon a highway which is divided into 3 lanes, a vehicle shall not be

driven in the center lane except when overtaking or passing another vehicle or in

preparation for a left turn or unless the center lane is at the time allocated for

traffic moving in the direction the vehicle is proceeding and is signposted to give

notice of that allocation.

d. The State Highway Commissioner may by regulation or local

authorities may by resolution or ordinance with respect to highways under their

jurisdiction designate right-hand lanes for slow moving traffic and inside lanes

for traffic moving at the speed designated for the district as provided under this

chapter, and when the lanes are signposted or marked to give notice of the

designation a vehicle may be driven in any lane allocated to traffic moving in the

direction in which it is proceeding, but when traveling within the inside lanes the

vehicle shall be driven at approximately the speed authorized in such lanes and

speed shall not be decreased unnecessarily so as to block, hinder or retard traffic.

e. When such roadway had been divided in such a manner that there are

three or more lanes for traffic in any one direction, no truck of 10,000 pounds

registered gross weight or over shall be driven in the farthest left-hand lane,

except:

(1) when and to the extent necessary to prepare for a left turn; a truck

may be driven in the farthest left lane for up to one mile to prepare for

a left hand turn as authorized under this paragraph;

(2) when necessary to enter or leave such roadway by entrance or exit to

or from the left lane ; a truck may be driven in the farthest left lane for

up to one mile to prepare to enter or leave the roadway as authorized

under this paragraph;

(3) when reasonably necessary in response to emergency conditions; for

the purposes of this paragraph, “emergency conditions” shall include,

but not be limited to: poor visibility, snow, accidents, or the presence

of emergency vehicles.

Proof that the defendant violated this section may give rise to an inference that defendant

RECKLESS VEHICULAR HOMICIDE

(DEATH BY AUTO OR VESSEL WITH DWI OR REFUSAL)

(N.J.S.A. 2C:11-5)

was driving recklessly. However, you are never required or compelled to draw this inference. It

is your exclusive province to determine whether the facts and circumstances shown by the

evidence support any inference and you are always free to accept or reject the inference as you

deem appropriate.

[CHARGE IN ALL CASES]

In conclusion, the three elements of the crime of reckless vehicular homicide are:

1. That the defendant was driving a vehicle [or vessel];

2. That the defendant caused the death of (name victim); and

3. That the defendant caused such death by driving the vehicle [or vessel]

recklessly.

If the State has failed to prove any element beyond a reasonable doubt , then you must

find the defendant not guilty of vehicular homicide.

If you are satisfied that the State has proven each and every one of these elements beyond

a reasonable doubt, then you must find the defendant guilty of vehicular homicide.22

[CHARGE IF JURY WAS INSTRUCTED ON THE N.J.S.A. 2C:11-5(b)(5) PERMISSIVE

INFERENCE (FAILURE TO MAINTAIN LANE)):

22 If the State seeks a mandatory period of parole ineligibility under N.J.S.A. 2 C:11-5b(1), due to

driving while intoxicated or driving while suspended at the time of the incident, a bifurcated proceeding

may be required to establish the necessary predicate facts. N.J.S.A. 2C:11-5b provides for a mandatory

sentence to be imposed by th e court following a sentencing hearing requiring proof of specified elements

by a preponderance of the evidence, but the Sixth Amendment requires that a jury find any fact that

increases the mandatory minimum sentence beyond a reasonable doubt. Alleyne v. United States, 133

S.Ct. 2151 (2013), State v. Grate, 220 N.J. 317, 334 (2015). Thus, these sentencing issues should now be

presented to the jury for its consideration under the reasonable doubt standard. State v. Johnson, 166 N.J.

523 (2001); State v. Stanton, 339 N.J. Super. 1 (App. Div. 2001), certif. granted 169 N.J. 609 (2001). In

appropriate cases, bifurcation may be necessary to prevent prejudice to defendant ( e.g., where driving on

the revoked list is relevant to sentencing but not to guilt). See State v. Bakka, 350 N.J. Super. 43 (App.

Div. 2002).

RECKLESS VEHICULAR HOMICIDE

(DEATH BY AUTO OR VESSEL WITH DWI OR REFUSAL)

(N.J.S.A. 2C:11-5)

If you have found the defendant guilty of Reckless Vehicular Homicide you must then

answer an additional question on your Verdict Sheet, asking whether the defendant engaged in

any additional conduct, other than failing to maintain a lane, that would constitute driving

recklessly.23 The defendant has asserted that he/she engaged in no other reckless conduct in the

operation of the vehicle and the State alleges otherwise.

The defendant has the burden of proving the absence of any other reckless conduct by a

preponderance of evidence. The term "preponderance of the evidence" means the greater

weight of credible evidence in the case. It does not necessarily mean the evidence of the greater

number of witnesses but means that evidence which carries the greater convincing power to

your minds.

If you find that the defendant has met his/her burden in establishing the absence of

additional reckless conduct, other than failing to maintain a lane, answer “No” on your Verdict

Sheet.. If, on the other hand, you find that the Defendant has not met his/her burden, then

answer “Yes” on your verdict sheet.

Keep in mind, however, that although the burden rests upon the defendant to establish

the absence of additional reckless conduct by a preponderance of the credible evidence, the

burden of proving the defendant guilty of the offense charged beyond a reasonable doubt is

always on the State, and that burden never shifts to the defendant.

[CHARGE WHEN THE DEFENDANT IS CHARGED WITH RECKLESS VEHICULAR

HOMICIDE IN THE FIRST DEGREE, PURSUANT TO N.J.S.A. 2C:11-5b(3)]

If, and only if, you find the defendant guilty of the crime of Reckless Vehicular Homicide

23 N.J.S.A. 2C:11-5b(5).

RECKLESS VEHICULAR HOMICIDE

(DEATH BY AUTO OR VESSEL WITH DWI OR REFUSAL)

(N.J.S.A. 2C:11-5)

beyond a reasonable doubt, you must also decide whether the State has proven beyond a

reasonable doubt that the defendant operated the auto [or vessel] while in violation of New

Jersey’s driving while intoxicated law [or that defendant the reafter refused to submit to a

breathalyzer examination as required by New Jersey law], and if so, whether the State has further

proven beyond a reasonable doubt that he/she did so in a school zone or school crossing.

In order for you to fin d that the defendant violated the driving while intoxicated law, the

State must prove beyond a reasonable doubt that the defendant ope rated a motor vehicle [or

vessel] while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit -

producing drug, or operated a motor vehicle with a blood alcohol concentration of 0.08% or

more by weight of alcohol in his/her blood.

To prove a person guilty of an “under the influence” driving while intoxicated, the State

must establish intoxication based on evidence of a defendant’s physical and behavioral

characteristics at the time of arrest.24 This is determined based on the totality of the facts and

circumstances observable at the time of the incident. You have (heard testimony/ seen video)

about certain tests that were performed by the defendant at the request of police. The

defendant’s performance on those tests are one of the factors to be considered, but should not be

relied upon to the exclusion of other factors when determining if the defendant was under the

influence of alcohol or drugs. “Under the influence” is defined as a substantial deterioration or

diminution of the mental faculties or physical capabilities of a person whether it be due to

intoxicating liquor, narcotic, hallucinogenic or habit producing drugs.25 It is a condition which so

24 State v. Bealor, 187 N.J. 574 (2006).

25 State v. Tamburro, 68 N.J. 414, 421 (1975).

RECKLESS VEHICULAR HOMICIDE

(DEATH BY AUTO OR VESSEL WITH DWI OR REFUSAL)

(N.J.S.A. 2C:11-5)

affects the judgment or control of a motor vehicle operator as to make it improper for him/her to

drive on the highway.26

To prove a person guilty of driving while intoxicated based on blood alcohol

concentration, the State must establish evidence of the results a (blood/breath) test establishing a

blood alcohol concentration of 0.08 or more, by weight of alcohol in his blood. However, even

where (blood/breath) test results are admitted into evidence, the State’s burden of proof at the

end of the trial is more rigorous than what is required for evidence to be admissible.27 After

hearing all of the testimony and considering all of the admitted exhibits, you ultimately must be

persuaded that the elements of the offense, including the defendant’s blood alcohol

concentration, have been proven beyond a reasonable doubt.28 In other words, the fact that the

evidence was admitted should not direct you to find that this defendant violated the driving while

intoxicated statute. Rather, you must be convinced beyond a reasonable doubt that the results are

reliable.

If you are convinced beyond a reasonable doubt that the defendant violat ed the Driving

While Intoxicated statute while he/she committed the crime of Reckless Vehicular Homicide,

you must then decide whether the State has proven beyond a reasonable doubt that

[SELECT APPROPRIATE ALTERNATIVE(S)]

the defendant did so while on any school property used for school

purposes which was owned by or leased to any elementary or

secondary school or school board, or within 1,000 feet of such

property.

26 Id.

27 State v. Campbell, 436 N.J. Super. 264, 272 (2014).

28 Id.

RECKLESS VEHICULAR HOMICIDE

(DEATH BY AUTO OR VESSEL WITH DWI OR REFUSAL)

(N.J.S.A. 2C:11-5)

[OR]

the defendant did so while driving through a school crossing, if the

municipality, by ordinance or resolution, had designated the school

crossing as such. A “school crossing” means that portion of a

highway where school children are required to cross the highway

in the vicinity of a school.29]

[OR]

the defendant did so while driving through a school crossing

knowing that juven iles were present, if the municipality had not

designated the school crossing as such by ordinance or resolution.

A “school crossing” means that portion of a highway where school

children are required to cross the highway in the vicinity of a

school.30

It is no defense to a prosecution under the statute 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 that has been designated as such by mu nicipal ordinance or

resolution]. Nor is it a defense in such a case that no juveniles were present on the school

property [OR crossing zone] at the time of the offense, or that school was not in session.31

[CHARGE IF APPLICABLE:

The additional element of operating a vehicle [or vessel] in violation of the Driving

While Intoxicated statute through a school crossing that has not been designated as such by

municipal ordinance or resolution can only be found where there is proof beyon d a reasonable

29 N.J.S.A. 39:1-1.

30 N.J.S.A. 39:1-1.

31 N.J.S.A. 2C:11-5b(3). Note that the last sentence of this paragraph does not apply to the third

alternative specified in N.J.S.A. 2C:11 -5b(3)(c), which requires that a defendant knows juveniles to be

present in a school crossing that has not been designated as such by municipal ordinance or resolution.

RECKLESS VEHICULAR HOMICIDE

(DEATH BY AUTO OR VESSEL WITH DWI OR REFUSAL)

(N.J.S.A. 2C:11-5)

doubt that the defendant knew that juveniles were present at the time. A person acts knowingly

with respect to the nature of his/her conduct or the attendant circumstances if a person is aware

that his/her conduct is of that nature, or th at such circumstances exist, or a person is aware of a

high probability of t heir existence. A person acts knowingly with respect to a result of his/her

conduct if a person is aware that it is practically certain that his/her conduct will cause such a

result. One is said to act knowingly if one acts with knowledge, if one acts consciously, if he/she

comprehends his/her acts.32

Knowledge, like recklessness, is a condition of the mind that cannot be seen and that can

often be determined only from inferences from conduct, word, or acts. As I told you before, it is

not necessary for the State to produce a witness to testify that the defendant stated that he/she

acted with a particular state of mind. It is within your power to find that proof of knowledge has

been furnished beyond a reasonable doubt by infer ences that may arise from the nature of the

acts and circumstances surrounding the conduct in question.].

Record your additional finding(s) in the place(s) provided on your verdict sheet.

32 N.J.S.A. 2C:2-2b(2).