Approved 6/14/04
ASSAULT BY AUTO OR VESSEL
(BODILY INJURY, WITH DRUNK DRIVING OR REFUSAL)
(N.J.S.A. 2C:12-1c)
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:
1. That defendant was driving a vehicle [or
vessel];
2. That defendant caused bodily injury to
(name victim); and
3. That defendant caused such bodily injury
by driving the vehicle [or vessel] recklessly.
Bodily injury is defined as physical
pain, illness or any impairment of physical
condition.
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.
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,
is immaterial.
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.
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.
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.
[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.
[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.
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.
[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.
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.
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).
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.
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.
