N.J.S.A. 2C:11-5.3 codifies a new strict liability vehicular homicide statute that was approved on July 21, 2017. Criminal homicide now constitutes strict liability vehicular homicide, as opposed to negligent homicide, when it is caused by a driver while intoxicated or operating a vessel under the influence of alcohol or drugs.
Strict liability vehicular homicide is a crime of the third degree, but the presumption of nonimprisonment set forth in subsection e. of N.J.S.A 2C:44-1 shall not apply. This means that while people with no prior record of convictions generally cannot be sent to state prison for a third or fourth degree crime, they can be sent to state prison for this particular third degree crime. Note that there is always the possibility for up to 364 days in the county jail for all third degree offenses, as county jail sentences are not considered “imprisonment” for purposes of the presumption of nonimprisonment.
The new statute further provides that the provisions of N.J.S.A. 2C:2-3 governing the causal relationship between conduct and result shall not apply in a prosecution under this section. For purposes of this offense, the defendant’s act of operating a motor vehicle while intoxicated or operating a vessel under the influence of alcohol or drugs is the cause of death when:
(1) The operation of the motor vehicle or vessel is an antecedent but for which the death would not have occurred; and
(2) The death was not:
(a) too remote in its occurrence as to have a just bearing on the defendant’s liability; or
(b) too dependent upon the conduct of another person which was unrelated to the defendant’s operation of a motor vehicle or vessel as to have a just bearing on the defendant’s liability.
d. It shall not be a defense to a prosecution under this section that the decedent contributed to his own death by reckless or negligent conduct or operation of a motor vehicle or vessel.
e. Nothing in this section shall be deemed to preclude, if the evidence so warrants, an indictment and conviction for any other offense.
Section (d) is another example of the Legislature amending their own statutes to take away previously-available defenses. The sub-section essentially precludes a decedent’s conduct from being considered as a defense in a strict liability vehicular homicide prosecution unless the decedent knowingly contributed to their own death, i.e. committed suicide. Such a defense will be exceedingly difficult to raise because the decedent will be dead and the defendant will likely be impaired at the time of the accident.
Thus, it will be difficult to find proof of suicide under the circumstances unless the decedent left a note or told a third party of their plan to commit suicide by jumping in front of a moving vehicle. Even then, there is a risk of jury nullification since intoxicated drivers garner little sympathy under the circumstances, whereas the decedent and their family naturally garner a great deal of sympathy.