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

Revised 4/20/20

RECKLESS VEHICULAR HOMICIDE

(RECKLESS WITHOUT 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 defend ant 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 de ath by driving the vehicle [or vessel]

recklessly.

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

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

[NOTE: In cases where Causation - Removal of Life Support is an issue, 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 WITHOUT DWI)

(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 liabilit y 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 b roken 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 to 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 d rove a vehicle [or ve ssel]

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 under such circumstances as to create a

substantial and unjustifiable risk of death t o 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 fro m 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 WITHOUT DWI)

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

himself/herself in the situation.

Recklessness is a condition of the mind that cannot be seen and that 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 power 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 de fendant [list motor vehic le violations

alleged and their elements] . It may be necessary for you to determine [Choose as

appropriate: (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. 5 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: (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: LACK OF SLEEP]

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

RECKLESS VEHICULAR HOMICIDE

(DEATH BY AUTO OR VESSEL WITHOUT DWI)

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

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

that defendant was driving after having b een 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 ris e

to an inference that defendant was driving recklessly. 6 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 y ou 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. 7 The pertinent part of that law states that

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 ha nds-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 requi red safety

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

vehicle.8

[CHOOSE AS APPROPRIATE]

The operator of a motor vehicle may use a hand -held wireless telephone while driving

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

7 The statute does not apply to the use of a citizen’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. N.J.S.A. 39:4-97.3.

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

RECKLESS VEHICULAR HOMICIDE

(DEATH BY AUTO OR VESSEL WITHOUT DWI)

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

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/herself or another person.9

• 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 appear to be driving under

the influence of alcohol or drugs.10

[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

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.11

“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.12

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

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

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

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

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

RECKLESS VEHICULAR HOMICIDE

(DEATH BY AUTO OR VESSEL WITHOUT DWI)

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

motor vehicle statute may give rise to an inference that defendant was driving recklessly.13

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]14

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.

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

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

14 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 WITHOUT DWI)

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

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

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]

RECKLESS VEHICULAR HOMICIDE

(DEATH BY AUTO OR VESSEL WITHOUT DWI)

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

recklessly.

If the State has failed to prove any element beyond a reasonable doub t, 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.15

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

INFERENCE (FAILURE TO MAINTAIN LANE)):

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.16 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.

15 If the State seeks a mandatory period of parole ineligibility under N.J.S.A. 2C: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 the

court following a sentencing hearing requiring proof of specified elements by a preponderance of the evidence, but

the Sixth Am endment requires that a jury find any fact that i ncreases 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 pres ented 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 necessar y 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).

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

RECKLESS VEHICULAR HOMICIDE

(DEATH BY AUTO OR VESSEL WITHOUT DWI)

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

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.