Although an aggravated assault may be accomplished with any type of weapon or device, the law is clear that a motor vehicle may be used to commit this offense as well. A serious bodily injury is required for all second degree aggravated assaults under N.J.S.A. 2C:12-1(b)(1). A serious bodily injury is defined as a bodily injury that creates a substantial risk of death or that causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
When the resulting harm to the victim is only a significant bodily injury, the aggravated assault is usually third degree. A significant bodily injury is defined as a bodily injury that creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses.
When a defendant causes or attempts to cause a serious bodily injury or significant bodily injury through the operation of a motor vehicle, he may commit an aggravated assault in the following ways:
(1)
Purposeful Conduct
The defendant may operate his motor vehicle with the specific intention of causing serious bodily injury to the victim. If the defendant either attempts to cause such an injury or, in fact, does cause such an injury to the victim as a result of his purposeful conduct, he or she is guilty of aggravated assault. An example of this conduct would occur when the defendant intends to injure the victim, sees the victim crossing the street and purposely strikes the victim with his or her motor vehicle, resulting in serious bodily injury to the victim. When the purposeful assault results in serious bodily injury, the aggravated assault constitutes a crime of the second degree. When the purposeful conduct results only in significant bodily injury,
the aggravated assault is a crime of the third degree.
When the injury constitutes mere bodily injury,
the offense is a simple assault.
(2)
Knowing Conduct
The defendant who knowingly causes serious bodily injury to the victim through the operation of his motor vehicle is also guilty of aggravated assault. As an example, the defendant knows he is operating a motor vehicle, sees the victim crossing the street and drives his vehicle directly at the victim knowing that if he strikes the victim, the victim is certain, or practically certain to suffer a serious bodily injury. Aggravated assault that knowingly results in serious bodily injury is a crime of the second degree. When the aggravated assault knowingly results in only significant bodily injury, it is a crime of the third degree. If the resulting injury is only deemed to be bodily injury, the offense constitutes simple assault.
(3)
Reckless Conduct
A defendant's driving conduct must be more than merely reckless to render him guilty of aggravated assault with a motor vehicle. The defendant's recklessness must occur under circumstances manifesting extreme indifference to the value of human life. This level of extreme recklessness entails a probability of serious bodily injury as opposed to the mere possibility. The resulting serious bodily injury to the victim must be causally linked to the defendant's extreme recklessness. The typical defendant in this type of case was not merely reckless, in the sense of disregarding a substantial and unjustifiable risk. The conduct must be extreme. For example, a high level of intoxication may be evidence of recklessness by the defendant. More is needed for aggravated assault. This might include driving at an unreasonably high speed while intoxicated or in a manner in which serious bodily injury is the probable consequence. This could include weaving in heavy traffic, high speeds through a residential or school zone when children are present and the like. When the resulting injury constitutes serious bodily injury, the aggravated assault is a crime of the second degree. When the injury is the less severe "significant bodily injury" the offense is a crime of the third degree.
(4)
Merger of DWI Into Aggravated Assault
There are special sentencing issues that arise in the context of an aggravated assault committed by a defendant who operates a motor vehicle while intoxicated. Normally, if the prosecution's sole evidence of recklessness is the defendant's intoxication at the time of the driving conduct that resulted in an aggravated assault, the drunk driving charge should merge into the aggravated assault charge. However, if the defendant's recklessness can also be attributed to other acts unrelated to the level of intoxication, the drunk driving charge should not merge.
As a practical matter, unless the defendant is acquitted of the drunk driving charge, none of these fine legal distinctions makes any difference. A defendant who has a drunk driving charge merged into a conviction for aggravated assault will still be subject to the mandatory penalties under N.J.S.A. 39:4-50(a). These penalties survive the merger since they result in punishment for the defendant and protection for the driving public. From a procedural standpoint, the Superior Court will enter the finding of guilt on the drunk driving ticket and remand the case to municipal court for the imposition of the drunk driving sentence.
(5)
Strict Liability
A person who causes bodily injury to another while committing the crime of fleeing or attempting to elude the police under N.J.S.A. 2C:29-2(b) or joyriding under N.J.S.A. 2C:20-10(c) is guilty of a crime of the second degree. Note that the injury to the victim for this crime need only be bodily injury. Bodily injury means physical pain, illness or any impairment of physical condition. There must be a causal relationship between the injury and the commission of the eluding or joyriding offenses. Upon proof of the eluding or the joyriding offense, coupled with proof of a resulting bodily injury, the defendant will be strictly liable for a second-degree aggravated assault.
Please do not underestimate how serious an aggravated assault while driving a motor vehicle charge is. Do not make the mistake of making any statement to the police without an attorney present. You may make mistakes that will have long-lasting consequences for yourself and your family. If you would like to speak with an attorney, please contact the Ibrahim Law Offices and arrange a free consultation. We defend individuals charged with aggravated assault with a motor vehicle throughout NJ, including Passaic County, Hudson County, Union County, Essex County and Morris County.