New Jersey-2018-S3127-Introduced

An Act concerning certain crimes by motor vehicle or vessel operators, designated as "Marissa's Law," and amending various sections of the statutory law.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. N.J.S.2C:11-5 is amended to read as follows:

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

a. Criminal homicide constitutes reckless 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. 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 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 paragraphs (3) and (5) of this subsection, reckless 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 Chief Administrator of the New Jersey Motor Vehicle Commission 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] five 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 Chief Administrator of the New Jersey Motor Vehicle Commission 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) 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.

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.

(5) 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.

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.

(cf: P.L.2017, c.372, s.1).

2. Section 1 of P.L.1997, c.111 (C.2C:11-5.1) is amended to read as follows:

1. A motor vehicle operator who knows he is involved in an accident and knowingly leaves the scene of that accident under circumstances that violate the provisions of R.S.39:4-129 shall be guilty of a crime of the second degree if the accident results in the death of another person. A person convicted under this section for a crime of the second degree shall be sentenced to a minimum term of imprisonment by the court. Notwithstanding the provisions of N.J.S.2C:43-6, the minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or five years, whichever is greater, during which the defendant shall be ineligible for parole.

If the motor vehicle operator reports the accident to the nearest police department or to the State Police within 24 hours of the accident or prior to the authorities identifying him as the operator involved in the accident, the operator shall be sentenced to an ordinary term of imprisonment between five to 10 years.

If the evidence so warrants, nothing in this section shall be deemed to preclude an indictment and conviction for aggravated manslaughter under the provisions of N.J.S.2C:11-4, reckless vehicular homicide under the provisions of N.J.S.2C:11-5 or strict liability vehicular homicide under the provisions of section 1 of P.L.2017, c.165 (C.2C:11-5.3).

Notwithstanding the provisions of N.J.S.2C:1-8 or any other provisions of law, a conviction arising under this section shall not merge with a conviction for aggravated manslaughter under the provisions of N.J.S.2C:11-4, reckless vehicular homicide under the provisions of N.J.S.2C:11-5 or strict liability vehicular homicide under the provisions of section 1 of P.L.2017, c.165 (C.2C:11-5.3) and a separate sentence shall be imposed upon each such conviction.

Notwithstanding the provisions of N.J.S.2C:44-5 or any other provisions of law, when the court imposes multiple sentences of imprisonment for more than one offense, those sentences shall run consecutively.

For the purposes of this section, neither knowledge of the death nor knowledge of the violation are elements of the offense and it shall not be a defense that the operator of the motor vehicle was unaware of the death or of the provisions of R.S.39:4-129.

(cf: P.L.2017, c.165, s.4)

3. Section 1 of P.L.2014, c.17 (C.2C:11-5.2) is amended to read as follows:

1. a. (1) Whenever any vessel, as defined in section 2 of P.L.1995, c.401 (C.12:7-71), is involved in an accident upon the waters of this State, and the operator of that vessel knows he is involved in an accident and knowingly leaves the scene of that accident under circumstances that violate the provisions of section 11 of P.L.1962, c.73 (C.12:7-34.46), that operator shall be guilty of a crime of the second degree if the accident results in the death of another person[, and shall be guilty of]. A person convicted under this section for a crime of the second degree shall be sentenced to a minimum term of imprisonment by the court. Notwithstanding the provisions of N.J.S.2C:43-6, the minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or five years, whichever is greater, during which the defendant shall be ineligible for parole. If the operator reports the accident to the nearest police department or to the State Police within 24 hours of the accident or prior to the authorities identifying him as the operator involved in the accident, the operator shall be sentenced to an ordinary term of imprisonment between five and 10 years.

(2) A violation of this section is a crime of the third degree if the accident results in serious bodily injury to another person. The presumption of nonimprisonment set forth in N.J.S.2C:44-1 shall not apply to persons convicted under the provisions of this section. A person convicted under this section for a crime of the third degree shall be sentenced to a minimum term of imprisonment by the court. Notwithstanding the provisions of N.J.S.2C:43-6, the minimum term shall be three years, during which time the defendant shall not be eligible for parole. The court may not suspend or make any other non-custodial disposition of any person sentenced pursuant to this section. If the operator reports the accident to the nearest police department or to the State Police within 24 hours of the accident or prior to the authorities identifying him as the operator involved in the accident, the operator shall be sentenced to an ordinary term of imprisonment between three and five years.

b. If the evidence so warrants, nothing in this section shall be deemed to preclude an indictment and conviction for aggravated manslaughter under the provisions of N.J.S.2C:11-4, reckless vehicular homicide under the provisions of N.J.S.2C:11-5 or strict liability vehicular homicide under the provisions of section 1 of P.L.2017, c.165 (C.2C:11-5.3).

c. Notwithstanding the provisions of N.J.S.2C:1-8 or any other provisions of law, a conviction arising under this section shall not merge with a conviction for aggravated manslaughter under the provisions of N.J.S.2C:11-4, reckless vehicular homicide under the provisions of N.J.S.2C:11-5 or strict liability vehicular homicide under the provisions of section 1 of P.L.2017, c.165 (C.2C:11-5.3) and a separate sentence shall be imposed upon each such conviction.

d. Notwithstanding the provisions of N.J.S.2C:44-5 or any other provisions of law, when the court imposes multiple sentences of imprisonment for more than one offense, those sentences shall run consecutively.

e. For the purposes of this section, knowledge of the death, knowledge of the serious bodily injury, or knowledge of the violation shall not be elements of the offense and it shall not be a defense that the operator of the vessel was unaware of the death or of the provisions of section 11 of P.L.1962, c.73 (C.12:7-34.46).

(cf: P.L.2017, c.165, s.5)

4. Section 2 of P.L.1997, c.111 (C.2C:12-1.1) is amended to read as follows:

2. A motor vehicle operator who knows he is involved in an accident and knowingly leaves the scene of that accident under circumstances that violate the provisions of R.S.39:4-129 shall be guilty of a crime of the third degree if the accident results in serious bodily injury to another person. The presumption of nonimprisonment set forth in N.J.S.2C:44-1 shall not apply to persons convicted under the provisions of this section.

A person convicted under this section for a crime of the third degree shall be sentenced to a minimum term of imprisonment by the court. Notwithstanding the provisions of N.J.S.2C:43-6, the minimum term shall be three years, during which time the defendant shall not be eligible for parole. The court may not suspend or make any other non-custodial disposition of any person sentenced pursuant to this section. If the operator reports the accident to the nearest police department or to the State Police within 24 hours of the accident or prior to the authorities identifying him as the operator involved in the accident, the operator shall be sentenced to an ordinary term of imprisonment between three to five years.

If the evidence so warrants, nothing in this section shall be deemed to preclude an indictment and conviction for aggravated assault or assault by auto under the provisions of N.J.S.2C:12-1.

Notwithstanding the provisions of N.J.S.2C:1-8 or any other provisions of law, a conviction arising under this section shall not merge with a conviction for aggravated assault or assault by auto under the provisions of N.J.S.2C:12-1 and a separate sentence shall be imposed upon each conviction.

Notwithstanding the provisions of N.J.S.2C:44-5 or any other provisions of law, whenever in the case of such multiple convictions the court imposes multiple sentences of imprisonment for more than one offense, those sentences shall run consecutively.

For the purposes of this section, neither knowledge of the serious bodily injury nor knowledge of the violation are elements of the offense and it shall not be a defense that the driver of the motor vehicle was unaware of the serious bodily injury or provisions of R.S.39:4-129.

(cf: P.L.2007, c.83, s.2)

5. This act shall take effect immediately.

STATEMENT

This bill would provide for mandatory terms of imprisonment for the crimes of knowingly leaving the scene of an accident resulting in death or serious bodily injury and for reckless vehicular homicide (death by auto or vessel). The mandatory term of imprisonment would not apply if the operator reports the accident to the police within 24 hours, and the operator would be sentenced to an ordinary term of imprisonment.

Motor Vehicle Accident Resulting in Death.

Currently, a person is guilty of a crime of the second degree if he knowingly leaves the scene of a motor vehicle accident resulting in the death of another person pursuant to section 1 of P.L.1997, c.111 (2C:11-5.1). A crime of the second degree is punishable by a term of imprisonment of five to ten years, a fine of up to $150,000, or both.

This bill would amend this section to impose a mandatory minimum term of imprisonment for this second degree crime fixed at, or between, one-third and one-half of the sentence imposed by the court or five years, whichever is greater, during which the defendant would not be eligible for parole. However, the mandatory term of imprisonment would not apply if the motor vehicle operator who left the scene of the accident, reports the accident to the nearest police department or to the State Police within 24 hours of the accident or prior to the authorities identifying him as the operator involved in the accident. In that case, the operator would be sentenced to an ordinary term of imprisonment for a crime of the second degree, which is between five and 10 years.

Boating Accident Resulting in Death or Serious Bodily Injury.

Under the current provisions of section 1 of P.L.2014, c.17 (C.2C:11-5.2), it is a crime of the second degree whenever a vessel is involved in an accident and the operator leaves the scene of the boating accident resulting in the death of another person. It is a crime of the third degree if the accident results in serious bodily injury to another person.

This bill would impose a mandatory minimum term of imprisonment for the second and third degree crimes of knowingly leaving the scene of a boating accident. The minimum term of imprisonment for a crime of the second degree would be fixed at, or between, one-third and one-half of the sentence imposed by the court or five years, whichever is greater, during which the defendant would not be eligible for parole. If the operator reports the accident to the nearest police department or to the State Police within 24 hours of the accident or prior to the authorities identifying him as the operator involved in the accident, the mandatory term of imprisonment would not apply. The operator would be sentenced to an ordinary term of imprisonment for a crime of the second degree, which is between five and 10 years.

In addition, this bill would impose a mandatory term of imprisonment for a crime of the third degree if the accident results in serious bodily injury. The minimum term of imprisonment for this third degree crime would be fixed at three years, during which the defendant would not be eligible for parole. If the operator reports the accident to the nearest police department or to the State Police within 24 hours of the accident or prior to the authorities identifying him as the operator involved in the accident, the mandatory term of imprisonment would not apply and the operator would be sentenced to an ordinary term of imprisonment for a crime of the third degree, which is between three to five years.

Motor Vehicle Accident Resulting in Serious Bodily Injury. Currently, under the provisions of section 2 of P.L.1997, c.111 (C.2C:12-1.1) it is a crime of the third degree if an operator leaves the scene of an accident which results in serious bodily injury to another person. This bill would impose a mandatory minimum term of imprisonment of three years, during which the defendant would not be eligible for parole. If the operator reports the accident to the nearest police department or to the State Police within 24 hours of the accident or prior to the authorities identifying him as the operator involved in the accident, the operator would sentenced to an ordinary term of imprisonment for a crime of the third degree, which is between three to five years.

Death By Auto (Reckless Vehicular Homicide). The bill would amend N.J.S.2C:11-5 to increase the mandatory term of imprisonment for death by auto or vessel (reckless vehicular homicide) from three years to five years, if the defendant was operating the auto or vessel while under the influence of any intoxicating liquor or drugs or if the driver was operating the auto or vessel while his driver's license was suspended or revoked. Under current law the minimum term is one-third to one-half of the sentence imposed or three years, whichever is greater.

This bill, named "Marissa's Law," is in response to the tragic death of Marissa Procopio from Atlantic Highlands who was fatally struck by a car on July 7, 2015. The driver of the car fled the scene of the crime but was later apprehended, charged and was sentenced after entering a plea agreement. This bill imposes a mandatory term of imprisonment for leaving the scene of an accident resulting in death or serious bodily injury. The mandatory term of imprisonment would not be available in those cases where the operator reports the accident to the nearest police department or to the State Police within 24 hours of the accident.