The defendant (Name) is charged in count _____ with the crime of assault by auto [or vessel]. The indictment alleges:
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.
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.
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.
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.
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].
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.
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.
[4]N.J.S.A. 2C:2-3a(1). If proximate cause is an issue, N.J.S.A. 2C:2-3c should be charged.[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 ofN.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.
[8] State v. Muniz, 118 N.J. 319 (1990).
[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 underN.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.
[10]N.J.S.A. 39:1-1.
[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).