On certification to the Superior Court, Appellate Division, whose opinion is reported at 208 N.J. Super. 422 (1986).
For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- None. The opinion of the Court was delivered by Pollock, J.
The primary question on this appeal is whether an acquittal of death by auto, N.J.S.A. 2C:11-5, should bar a subsequent prosecution for driving while under the influence (the DWI charge), N.J.S.A. 39:4-50.
After a jury trial in the Law Division, defendant was acquitted of causing death by auto. Thereafter she moved in the Dover Township Municipal Court to dismiss the DWI charge, but the court denied the motion. On appeal, however, the Law Division granted the motion to dismiss. The Appellate Division affirmed, 208 N.J. Super. 422 (1986), stating that the prosecution had conceded that its only evidence of recklessness to support the death-by-auto charge was defendant's alleged intoxication. Id. at 426. Before us, the Attorney General challenges that statement and contends that various facts, including the weather, road, and lighting conditions, were such that the happening of the accident raises an inference of recklessness apart from evidence of defendant's intoxication. We granted certification, 104 N.J. 468 (1986), and now reverse and remand to the Law Division.
At approximately 1:00 a.m. on January 29, 1984, a car operated by defendant, Linda DeLuca, on Clifton Avenue, Dover Township, Ocean County, struck and killed a pedestrian. DeLuca had spent the evening at the home of Sharon Peet, where she had consumed alcoholic beverages. Defendant offered to drive Miss Peet to a store to purchase cigarettes, and on the return trip, defendant's vehicle struck the pedestrian. The weather was clear, and the road was dry and well lighted. Defendant's vehicle left no skid marks, and no other vehicle
was involved in the accident. The breathalyzer test revealed defendant's blood alcohol content as .21%.
Initially, defendant was charged in the Dover Township Municipal Court with DWI and reckless driving. Thereafter she was indicted by the Ocean County Grand Jury for causing death by auto. After her acquittal following a jury trial on that indictment, defendant moved in the Municipal Court to dismiss the DWI and reckless driving charges. The State agreed to dismiss the reckless driving charge because of double jeopardy; the Municipal Court, however, denied defendant's motion to dismiss the DWI charge.
Relying on State v. Dively, 92 N.J. 573 (1983), however, the Law Division reversed. The court found that the DWI prosecution was barred by double jeopardy because the State intended to rely on the same evidence used to prove recklessness in the death-by-auto prosecution, namely, intoxication.
In affirming, the Appellate Division found that the charges of death by auto and DWI each required proof of elements not required by the other. The court, nonetheless, agreed with the Law Division that because the State would rely on the same proofs in both prosecutions, the DWI prosecution was barred.
In light of the State's representation that evidence other than intoxication was adduced in the trial of the death-by-auto indictment, we are constrained to remand the matter to the Law Division to determine whether such proof was adduced or whether intoxication was offered as the sole proof of defendant's recklessness in that prosecution.
Our analysis begins with the double jeopardy clause of the fifth amendment of the United States Constitution, which provides: "Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb * * *." Through the due process clause of the fourteenth amendment, this constitutional guarantee applies against the states. Illinois v. Vitale,
447 U.S. 410, 415, 100 S. Ct. 2260, 2264, 65 L. Ed. 2d 228, 235 (1980); Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707, 716 (1969). The parallel provision in the State Constitution is article I, paragraph 11, which provides: "No person shall, after acquittal, be tried for the same offense." We have consistently interpreted the state constitutional double jeopardy protection as co-extensive with the guarantee of the federal Constitution. State v. Dively, supra, 92 N.J. at 573, 578; State v. Barnes, 84 N.J. 362, 370 (1980); State v. Rechtschaffer, 70 N.J. 395, 404 (1976); State v. Wolf, 46 N.J. 301, 303 (1966).
The United States Supreme Court has stated that the double jeopardy clause "protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656, 664-65 (1969) (footnotes omitted). The present case involves the protection accorded by the clause against a second ...