Can reckless driving be considered criminal?

Yes, said the court, if defendant consciously disregards a substantial and unjustifiable risk which amounts to “a gross deviation from the way a reasonable person would have conducted himself in the situation.” State v. Huang, 240 N.J. 56 (2019).

On Jan. 16, 2016, defendant and his passenger had finished dinner at a Chinese restaurant located in a strip mall adjacent to Route 27, Highland Park, New Jersey. As defendant exited the parking lot, he failed to properly execute a full left turn. Specifically, without ever applying his brakes, he crossed four lanes, mounted the curb on the opposite side of Route 27, then sheared two metal signs and hit a concrete planter. He continued on and recrossed the four lanes and crashed into a tree. The evidence also showed that in 4.65 seconds defendant reached a speed of 37.3 miles per hour, that defendant “enjoyed the feeling of acceleration to the point of feeling his back pushed against the seat.”

One of the street sign support posts struck a six-year-old child in the head, which resulted in his untimely death. Defendant was subsequently indicted for second degree vehicular homicide of a child. N.J.S.A. 2C:11-5(a).

The trial court granted defendant’s motion to dismiss the indictment. The Appellate Division reversed and remanded, with Judge Jose Fuentes dissenting. 461 N.J. Super. 119 (App. Div. 2018). The Supreme Court, per curiam, 240 N.J. 56 (2019), affirmed substantially for the reasons expressed in Judge Scott Moynihan’s Appellate Division majority opinion.

The evidence presented to the grand jury included defendant’s medical records in which his doctor opined that at the time of the incident, defendant suffered from a “basilar artery migraine causing the warning symptoms of dizziness, whiting out of vision, then loss of consciousness” possibly caused by defendant’s “consuming MSG at a Chinese restaurant.”

Defendant was indicted for second degree vehicular homicide, N.J.S.A. 2C:11-5(a) which “is caused by driving a vehicle … recklessly”. Recklessly is defined as when a driver “consciously disregards a substantial and unjustifiable risk [which] … considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.” N.J.S.A.2C:2-2(b)(3).

In reversing the trial court’s dismissal of the indictment, the Appellate Division pointed out that the criminal homicide statute creates an inference of recklessness if defendant:

1. Fell asleep while driving having not previously slept for 24 hours;
2. Was intoxicated;
3. Was on a handheld phone; or
4. Failed to maintain a lane of travel.
   

Moynihan noted that an indictment should not be dismissed if “viewing the evidence and the rational inferences drawn from that evidence in the light most favorable to the state, a grand jury could reasonably believe that a crime occurred and that the defendant committed it.” The court found that the evidence before the grand jury was sufficient to establish a prima facia case and therefore the trial court abused its discretion in dismissing the indictment.

In his dissent, Fuentes, pointed out that none of the inferences of recklessness enumerated in N.J.S.A. 2C:11-15(a) were present in this case. Specifically, the evidence demonstrated that defendant:

1. Was not sleep deprived;
2. Was not intoxicated;
3. Was not on a cell phone; and
4. At the time of the accident defendant was travelling at 37.6 miles per hour in a 40 mile per hour zone, i.e., under the speed limit.
   

Additionally, Fuentes noted that although the grand jury was advised by the investigating detective that the passenger told him that defendant “enjoys the feeling of acceleration," the detective did not tell the grand jury that the passenger initially stated the defendant “was not driving fast out of the restaurant parking lot.” This, according to the trial judge who dismissed the indictment, constituted misleading testimony before the grand jury.

Fuentes stated that the testimony about defendant’s “alleged predilection for acceleration … was highly prejudicial and would have been palpably inadmissible in a future trial under N.J.R.E. 404(b) because it was clearly offered by the state to prove the disposition of a person in order to show that such person acted in conformity therewith.” Fuentes considered this tactic by the state to be “patently inconsistent with basic principles of fundamental fairness.”

Thus, Fuentes concluded that “viewed in the light most favorable to the state, this tragic occurrence bespeaks of civil negligence, not criminal recklessness.”

In this author’s opinion, Moynihan clearly got it right. In addition to being entitled to an inference of recklessness because the defendant not only failed to maintain a lane of travel, here defendant failed to maintain eight lanes of travel. Additionally, defendant sheared two street signs, struck a planter, and crashed into a tree. Even Fuentes, in his dissent, concedes that defendant’s conduct “bespeaks of civil negligence, not criminal recklessness.” Thus, it would appear that even the dissent agrees that defendant’s conduct constituted a negligent deviation from the standard of conduct that a reasonable person would observe in defendant’s situation, but contends it was not a gross deviation. In this author’s opinion such a distinction is simply a matter of degree which clearly is a question of fact for a jury, not a judge, to decide.

Louis F. Locascio, a Monmouth County Superior Court Judge from 1992 until 2009, is now of counsel with The Law Office of Andrew S. Blumer in Freehold, where he heads up the mediation/arbitration department.