ASSAULT BY AUTO OR VESSEL
(N.J.S.A. 2C:12-1c) Model Jury charge
The
defendant (Name) is charged in count _____ with the crime of assault by auto
[or vessel]. The indictment alleges:
(READ APPROPRIATE COUNT OF INDICTMENT)
The statute upon which this charge is based provides:
A person is
guilty of assault by auto [or vessel] when the person drives a vehicle [or
vessel] recklessly and causes...bodily injury to another.
In order for you to find the defendant guilty of this crime,
the State must prove the following elements beyond a reasonable doubt:
2. That defendant caused bodily injury to
(name victim); and
3. That defendant caused such bodily
injury by driving the vehicle [or vessel] recklessly.
In order to find that defendant caused (victim's) injury,
you must find that (victim) would not have been injured but for defendant's
conduct.[4]
A
person acts recklessly when he/she
consciously disregards a substantial and unjustifiable risk that bodily injury
will 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 the defendant
drove a vehicle [or vessel] recklessly, the State must
prove beyond a reasonable doubt that
the defendant was aware that 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 bodily injury 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 from the way a reasonable person would have conducted 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 proven recklessness beyond a reasonable doubt even though the defendant was
unaware of a risk of which he/she would have been aware were he/she not intoxicated.[7]
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 that 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 necessary for you to determine whether defendant operated a motor vehicle
while in violation of New Jersey's drunk driving law [and/or that defendant
thereafter refused to submit to a breathalyzer examination as required by New
Jersey law], as I will explain shortly.
[Charge where appropriate:
However, with that one possible exception, whether defendant is guilty
or not of a motor vehicle offense will be determined by an appropriate court.[8] In other words, it is not your job to decide
whether he/she is guilty or not guilty of
any motor vehicle offense other than drunk driving (and/or refusal).] In any event, you may consider the evidence
that he/she committed [a] motor vehicle
offense[s] in deciding whether he/she was reckless.
[CHARGE IN ALL CASES]
In conclusion, the three
elements of the crime of assault by auto [or vessel] are:
1.
That the defendant was driving a
vehicle [or vessel];
2.
That the defendant caused bodily
injury to (name victim); and
3.
That the defendant caused such
bodily injury by driving the vehicle [or vessel] recklessly.
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 assault by auto [or vessel].
However, if the State has failed to prove any element beyond a reasonable
doubt, then you must find the defendant not guilty of assault by auto [or vessel].
If, and only if, you find the
defendant guilty of the crime charged beyond a reasonable doubt, you must
proceed to determine whether the State has also proven beyond a reasonable
doubt that the defendant operated the auto [or vessel] while in violation of
New Jersey’s drunk driving law [or that defendant thereafter refused to submit
to a breathalyzer examination as required by New Jersey law].
In order for you to find that
the defendant violated the drunk driving law, 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 concentration of 0.08%
or more by weight of alcohol in his/her blood.[9]
[CHARGE
WHERE AND TO THE EXTENT APPROPRIATE]
If, and only if, you find the
defendant guilty of the crime charged beyond a reasonable doubt, and you also
decide that the State has proven beyond a reasonable doubt that the defendant
operated the auto [or vessel] while in violation of New Jersey's drunk driving
law [or that defendant thereafter refused to submit to a breathalyzer
examination as required by New Jersey law], you must also proceed to determine
whether the State has further proven beyond a reasonable doubt that
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.
[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.[10]
[OR]
the defendant did so while
driving through a school crossing knowing that juveniles 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.[11]
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 municipal 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 the school was not in session.[12]
[CHARGE IF APPLICABLE]
The additional element of
operating a vehicle [or vessel] in violation of the drunk driving law through a
school crossing that has not
been designated as such by municipal ordinance or resolution can only be found
where there is proof beyond a reasonable 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 that such circumstances exist, or a person is aware of a high probability of
their 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.[13]
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 inferences
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.
[1] “Drunk Driving” is utilized as a convenient short-hand label
in the caption. The statute is broader
in scope and also includes driving while under the influence of substances
other than alcohol. In appropriate cases
the charge will have to be adapted to fit the facts.
[2] N.J.S.A.
2C:12-1c provides: "As used in this
section, 'vessel' means a means of conveyance for travel on water and propelled
otherwise than by muscular power."
[3] N.J.S.A.
2C:11-1a.
[5] There is no legal distinction between intoxication
resulting from alcohol use and that resulting from drug use. Cannel, New Jersey 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 statutory 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, supra, Comment to N.J.S.A. 2C:2-8.
[9] N.J.S.A. 39:4-50.
There is a substantial body of case law interpreting this statute, and,
in appropriate cases, more elaborate instructions may have to be given as to
the definitions and application of the statutory language. The charge will also have to be modified
where the State alleges refusal to submit to a breathalyzer examination under N.J.S.A.
39:4-50a. 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.
[11] N.J.S.A.
39:1-1.
[12] N.J.S.A.
2C:12-1c. Note that the last sentence of
this paragraph does not apply to the third alternative specified in N.J.S.A.
2C:12-1c(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.
[13] N.J.S.A.
2C:2-2b(2).