Bill Text: NJ S2679 | 2022-2023 | Regular Session | Introduced
Bill Title: Requires court to order financial support for child if child's parent or guardian is killed by drunk driver.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2022-05-19 - Introduced in the Senate, Referred to Senate Judiciary Committee [S2679 Detail]
Download: New_Jersey-2022-S2679-Introduced.html
Sponsored by:
Senator EDWARD DURR
District 3 (Cumberland, Gloucester and Salem)
SYNOPSIS
Requires court to order financial support for child if child's parent or guardian is killed by drunk driver.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning vehicular homicide and amending and supplementing N.J.S.2C:11-5.
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 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.
f. In addition to any other restitution ordered by the court, a person who commits reckless vehicular homicide while in violation of R.S.39:4-50 shall be ordered to pay restitution on behalf of a minor child if the deceased is the parent or guardian of the minor child in accordance with the provisions of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill).
(cf: P.L.2017, c.372, s.1)
2. (New section) a. Upon the entry of a judgment of conviction for a violation of N.J.S.2C:11-5 which requires a defendant to pay financial support on behalf of the child of a deceased parent pursuant to subsection f. of N.J.S.2C:11-5, the sentencing court shall order restitution in an amount and for a duration that is reasonable and necessary for the financial support of the child.
b. In determining the amount to be paid by a defendant for the financial support of a child pursuant to this section, the court shall consider, but not be limited to, the following factors:
(1) the financial needs and resources of the child;
(2) the financial needs and resources of the surviving parent or guardian of the child, including the State if the child has been placed under the care and custody of the Division of Child Protection and Permanency in the Department of Children and Families;
(3) the standard of living to which the child is accustomed;
(4) the physical and emotional needs of the child;
(5) the child's educational needs;
(6) the physical and legal custody arrangements for the child;
(7) the work-related child care expenses for the surviving parent or guardian; and
(8) any other factor the court deems relevant.
c. The court shall order the defendant to pay financial support on behalf of the child:
(1) until the child reaches 18 years of age or has graduated from high school, whichever occurs later; or
(2) until the child reaches 21 years of age if the child suffers from a mental or physical disability.
Notwithstanding any provisions of this subsection to the contrary, any financial support ordered pursuant to this section shall be for a period of not less than five years.
d. The court shall order the defendant to make the financial support payments on behalf of the child to the clerk of the court, who shall remit payment to the surviving parent or guardian within 10 business days of receipt of the payment.
e. If a defendant who is ordered to pay financial support on behalf of a child pursuant to this section is incarcerated and unable to make the payments during the period of incarceration, the defendant's financial support obligation shall accrue during the period of incarceration but the defendant shall have up to one year following the release from incarceration to begin making payments.
f. If an arrearage exists at the time the period of financial support is scheduled to terminate, the court shall order the defendant to continue to make payments until the arrearage is paid in full.
g. If the surviving parent or guardian brings a civil action against a defendant following the entry of an order of financial support pursuant to this section, the judgment ordered in the civil action shall be offset by any financial support payments ordered pursuant to this section.
3. This act shall take effect on the first day of the second month next following the date of enactment.
STATEMENT
This bill requires the court to order financial support for a child if the child's parent or guardian is killed by a drunk driver.
Under the bill, if a person is convicted of reckless vehicular homicide while driving under the influence of alcohol or drugs, the sentencing court is required to order the defendant to pay financial support on behalf of a minor child if the deceased is the parent or guardian of the minor child.
In determining the amount to be paid by a defendant for the financial support of the child, the court is required to consider the following factors:
· the financial needs and resources of the child;
· the financial needs and resources of the surviving parent or guardian of the child, including the State if the child as been placed under the care and custody of the Division of Child Protection and Permanency in the Department of Children and Families;
· the standard of living to which the child is accustomed;
· the physical and emotional needs of the child;
· the child's educational needs;
· the physical and legal custody arrangements for the child;
· the work-related child care expenses of the surviving parent or guardian; and
· any other factor the court deems relevant.
The court is required to order the defendant to pay financial support on behalf of the child until the child reaches 18 years of age or has graduated from high school, whichever occurs later; or until the child reaches 21 years of age if the child suffers from a mental or physical disability. However, any financial support obligation ordered under the bill is to be for a period of not less than five years.
The provisions of the bill require the court to order the defendant to make the financial support payments to the clerk of the court, who is then required to remit payment to the surviving parent or guardian within 10 business days of receipt. If a defendant who is ordered to pay financial support on behalf of a child pursuant to this section is incarcerated and unable to make the financial support payments during the period of incarceration, the defendant's financial support obligation is to accrue during the period of incarceration but the defendant has up to one year following the release from incarceration to begin payments.
The bill further provides that if an arrearage exists at the time the period of financial support is scheduled to terminate, the court is required to order the defendant to continue to make payments until the arrearage is paid in full. In addition, if the surviving parent or guardian brings a civil action against a defendant following the entry of an order of financial support pursuant to this section, the judgment ordered in the civil action is to be offset by any financial support payments ordered pursuant to this section.
