State must prove that the defendant operated his vehicle
recklessly by consciously disregarding a substantial and
unjustifiable risk that death would result from his
conduct. N.J.S.A. 2C:2-2b(3); State v. Jamerson, 153
N.J. 318, 334 (1998); State v. Choinacki, 324 N.J. Super.
19, 47-48 (App. Div.), certif. denied, 162 N.J. 197
(1999). Since the death is caused by a motor vehicle, the
jury also has for its consideration the defendant’s guilt of
death by auto, now vehicular homicide, as a lesser-
included offense. The culpability element of recklessness
required for manslaughter is greater than that required for
death by auto. The State must prove “causative acts of
recklessness that are different in kind from the acts
involved in reckless driving that support a conviction for
death by auto.” State v. Jamerson, 153 N.J. at 334.
While driving under the influence may alone satisfy
the reckless element of the death by auto charge, State v.
Labrutto, 114 N.J. 187, 204 (1989), more is required for
a conviction of manslaughter. When the State relies on
drinking as an additional act of recklessness which caused
death, the drinking must be more than casual drinking
and more than intoxication. It must be “exceptional
drinking to a marked extent.” State v. Jamerson, 153 N.J.
at 335; State v. Scher, 278 N.J. Super. 249, 269 (App. Div.
1994), certif. denied, 140 N.J. 276 (1995). The deviation
from reasonable care must be gross in order to satisfy the
recklessness element of reckless manslaughter. State v.
Choinacki, 324 N.J. Super. at 48. The conduct while or
before driving must be “extraordinary” and “extreme” to
satisfy the recklessness element for manslaughter. State v.
Scher, 278 N.J. Super. at 269.
The need for this distinction may be obviated by the
Legislature’s regrading of vehicular homicide to a second
degree crime. Thus it seems that where an individual
causes death by recklessly driving his vehicle, the
appropriate charge will be vehicular homicide rather than
(reckless) manslaughter. The statute makes clear,
however, that prosecutions for aggravated manslaughter
are still contemplated where the evidence so warrants.
N.J.S.A. 2C:11-5d.
Evidence that the defendant was extremely
intoxicated, that he dismissed his chauffeur to drive
himself, and that he drove at an excessive speed and in a
daredevil manner supported his conviction for (reckless)
manslaughter as opposed to the lesser-included offense of
death by auto. State v. Scher, 278 N.J. Super. 249 (App.
Div. 1994), certif. denied, 140 N.J. 276 (1995).
B. Double Jeopardy ProblemsReckless and careless driving are lesser-included
offenses of vehicular homicide (death by auto). State v.
Muniz, 118 N.J. 319, 325 (1990); State v. Dively, 92 N.J.
573 (1983). A municipal court prosecution for a lesser-
included motor vehicle violation could bar a subsequent
criminal prosecution for vehicular homicide on
principles of double jeopardy. State v. Dively, 92 N.J.- Double jeopardy would also bar successive
prosecutions for vehicular homicide and driving while
intoxicated (DWI) if the prosecutions were based on the
same evidence, specifically that the evidence of
defendant’s recklessness was the fact that he was driving
while intoxicated. State v. DeLuca, 108 N.J. 98, cert.
denied, 484 U.S. 944, 108 S.Ct. 331, 98 L. Ed. 2d 358
(1987).
In order to avoid the double jeopardy problems
which can arise when indictable offenses, such as
aggravated manslaughter and vehicular homicide, and
violations of the motor vehicle code, such as DWI and
reckless driving, arising from the same occurrence are
tried separately, the Supreme Court of New Jersey has
determined that the charges should proceed simulta-
neously in Superior Court. The same judge will preside
over the trial for the indictable offenses and will sit as a
municipal court judge with respect to the motor vehicle
violations. The judge will base his decision on the proofs
adduced at trial. If in the indictable offense case, the sole
proof of recklessness is the defendant’s intoxication, the
jury’s determination of that issue precludes a conviction
for the DWI charge. State v. DeLuca, 108 N.J. 98. Code
standards do not permit, and common-law policies do
not require, the simultaneous submission to and
disposition by a jury of motor vehicle violations in
conjunction with its determination of the indictable
offenses. State v. Muniz, 118 N.J. at 327-32. To mitigate
the potential coercive influence of an all-or-nothing
charge and to reduce the likelihood of an all-or-nothing
verdict, the jury should be advised that there are lesser-
included motor vehicle offenses and that the
determination of the defendant’s guilt of those offenses is
the responsibility of the judge. Id. at 332.A defendant was tried in Superior Court on charges
of, among others, aggravated manslaughter, death by
auto, and several motor vehicle violations, including
DWI. The judge found him guilty of DWI while the jury
was deliberating on the other charges. The jury was
unable to reach a verdict on the aggravated manslaughter
and death by auto charges so the court declared a mistrial
on those two counts. The court granted the State’s