State v. Stanton

820 A.2d 637, 176 N.J. 75, 2003 N.J. LEXIS 458

• Court: Supreme Court of New Jersey
• Decided: April 17, 2003
• Status: Published

Opinions

The opinion of the Court was delivered by

COLEMAN, J.

This appeal involves a conviction for second-degree vehicular homicide, N.J.S.A. 2C:ll-5b, based on defendant’s reckless operation of her motor vehicle. The State relied on intoxication and other evidence such as speed to establish that defendant recklessly operated her motor vehicle. The jury was not asked to state the basis for its finding of recklessness. The sentencing provision for vehicular homicide mandates a minimum term of imprisonment for defendants who were intoxicated at the time of the offense and such “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.” N.J.S.A. 2C:ll-5b(l). The trial court found that defendant should be sentenced as if the offense were third-degree, found that defendant was intoxicated, and sentenced defendant to imprisonment for three years subject to parole ineligibility of three years. The issue before us is whether the jury should have been required to determine the sentence enhancement factor — the intoxication. We hold that the jury was not required to make that determination.

I.

In February 1997, defendant Traci Stanton invited her boyfriend, her brother, and her sister-in-law, Nancy Smith, to her house to play cards and drink beer. Defendant admitted drinking approximately one and one-half bottles of beer, although her brother recalled defendant drinking between three and five beers. At approximately 11:30 p.m., defendant drove her Porsche to purchase more beer while Smith rode in the front passenger seat. After purchasing the beer, defendant and Smith dropped off the beer at defendant’s house and proceeded to Smith’s home to pick up her dog. On their way to Smith’s home, defendant was unable to steer her car around a turn with the result that her vehicle left the road and struck a tree near the right shoulder of the road. The police arrived on the scene shortly before 1:00 a.m. and found the vehicle “completely on its roof.” While treating defendant and before removing her from the vehicle, an emergency medical technician (EMT) discovered a beer bottle “[wjithin four inches” of defendant’s head. Smith was found underneath the trunk of the car on the passenger side of the vehicle. She died as a result of the extensive injuries suffered during the accident.

The morning following the accident defendant was interviewed by Officer Priole. At that time she stated that she had been driving between sixty and sixty-five miles per hour and that neither she nor Smith had been wearing a seatbelt. The posted speed limit was fifty miles per hour, but the recommended speed at the site of the accident was only thirty-five miles per hour. Defendant admitted that she and Smith had been drinking beer in the car.

A grand jury indicted defendant for second-degree vehicular homicide, N.J.S.A. 2C:ll-5. In addition, the police issued defendant summonses for several motor vehicle offenses, including driving while intoxicated (DWI), in violation of N.J.S.A. 39:4-50; reckless driving, in violation of N.J.S.A. 39:4-96; consumption of alcohol while driving, in violation of N.J.S.A. 39:4-51a; and failure to wear a seatbelt, in violation of N.J.S.A. 39:3-76.2f. The vehicular homicide was tried to a jury while the non-indictable offenses were tried simultaneously before the judge. At the close of all the evidence, the trial court instructed the jury that the State must prove beyond a reasonable doubt the elements of the vehicular homicide offense. The jury found defendant guilty of second-degree vehicular homicide, contrary to N.J.S.A 2C:ll-5b.

The trial judge, sitting without the jury, addressed the alleged motor vehicle violations. She found defendant guilty of all of the offenses except the DWI on which she reserved decision until sentencing on the vehicular homicide conviction. At sentencing, the judge first addressed the charge of driving while intoxicated and determined that “the defendant must have consumed substantially more than two or three beers as everyone remember[ed]” and that “[t]he manner in which the accident occurred ... corroborate[d] the fact that she was driving under the influence.” Based on the evidence presented during the vehicular homicide trial, the judge found that the proofs convinced her beyond a reasonable doubt that defendant was guilty of driving while intoxicated.

Following the trial court’s denial of defendant’s motion for a new trial, defendant was sentenced on the vehicular homicide charge. After evaluating the aggravating and mitigating factors, the judge sentenced defendant as if the second-degree offense were a third-degree crime and imposed the three-year parole ineligibility term mandated by N.J.S.A. 2C:ll-5b(l). The mandatory parole ineligibility term was applied because the judge found defendant was intoxicated at the time she committed the vehicular homicide.

Defendant appealed her vehicular homicide conviction, claiming her conviction should be reversed based on alleged trial error. She also contended that N.J.S.A. 2C:ll-5b(l) was unconstitutional because it permits a judge to find an element of vehicular homicide — intoxication—by a preponderance of the evidence, rather than by a jury beyond a reasonable doubt. The Appellate Division affirmed in part and reversed in part. State v. Stanton, 339 N.J.Super. 1, 770 A.2d 1198 (2001).

The court applied the constitutional doubt doctrine and held that the three-year mandatory minimum sentence was unconstitutionally imposed because the issue of defendant’s intoxication had not been decided by the jury. Id. at 6, 770 A.2d 1198. The panel interpreted this Court’s holding in State v. Johnson, 166 N.J. 523, 766 A.2d 1126 (2001), to mean that

if imposition of a statutorily mandated parole ineligibility term is based on the existence of a fact other than a record of a prior conviction, then, as a matter of the imperatives of the Fifth and Sixth Amendments, that fact must be found by a jury beyond a reasonable doubt. Thus, if that fact is not a discrete element of the offense which the jury must find in order to convict, then it must be submitted to the jury for its determination.

[Stanton, supra, 339 N.J.Super, at 6-7, 770 A.2d 1198.]

The Appellate Division recognized that “there is a textual difference between [the vehicular homicide’s mandatory minimum parole ineligibility,] N.J.S.A. 2C:ll-5b(2)[,] and the corresponding NERA provision [requiring a defendant to serve eighty-five percent of a sentence for committing a violent crime,] N.J.S.A. 2C:43-7.2.” Stanton, supra, 339 N.J.Super. at 7, 770 A.2d 1198. Specifically, “NERA omits any reference to the standard of proof necessary to establish the parole-ineligibility fact, and it does not say whether the fact-finder is the judge or jury.” Ibid. On the other hand, N.J.S.A. 2C:ll-5b(2) “specifies that the finding must only meet the preponderance of the evidence standard and provides that the finding must be made by the ‘court’ — presumably the judge.” Ibid. Despite this difference, the Appellate Division was

convinced that if constitutional principles require the NERA provision to be read as mandating a jury finding of the NERA predicate fact beyond a reasonable doubt in order for that statute to survive constitutional challenge, then, by the same token, N.J.S.A 2C:ll-5b(2) can survive constitutional challenge only if it.is read in the same way.

Ubm

In other words, “[t]he Johnson holding, as we understand it, applies to every statute imposing a mandatory parole ineligibility term because of the capacity of that term to increase real time.” Ibid. Rather than declare N.J.S.A. 2C:ll-5b(2) unconstitutional, the Appellate Division elected to engage in “judicial surgery” to sustain the statute on “an assumption that the Legislature intended to act in a constitutional manner, ... [stating:] That can only be done by excising ... the references to the preponderance standard and the court’s findings and then construing the excised statute as Johnson construed NERA.” Id. at 7-8, 770 A.2d 1198.

According to the procedure articulated in State v. DeLuca, 108 N.J. 98, 111, 527 A.2d 1355, cert. denied, New Jersey v. DeLuca, 484 U.S. 944, 108 S.Ct. 331, 98 L.Ed.2d 358 (1987), the trial judge was required to decide the DWI offense after the jury returned a verdict on vehicular homicide. Ibid. Although the DWI offense was not tried to a jury, each element of that offense, including intoxication, still had to be found beyond a reasonable doubt. Ibid. The Appellate Division found that although both N.J.S.A 2C:ll-5b and N.J.S.A. 39:4-50 define intoxication identically, the principles set forth in Johnson still required a jury finding of intoxication beyond a reasonable doubt. Stanton, supra, 339 N.J.Super. at 8-9, 770 A.2d 1198. The panel reasoned that even though “the judge found intoxication beyond a reasonable doubt [that] does not mean that the jury either did[,] or would have[,] [because] it was free to attribute the fatal accident to speeding alone and there was evidence on which it could have found that defendant was not intoxicated.” Ibid. As a remedy, the Appellate Division vacated the three-year parole disqualifier but affirmed defendant’s conviction, stating that it was “satisfied that there was no reversible error attending the jury verdict of guilt of vehicular homicide.” Id. at 9, 770 A.2d 1198. The panel remanded to the trial court with the direction that the judgment of conviction should be modified by vacating the parole ineligibility term. Ibid.

Defendant’s petition for certification was denied. State v. Stanton, 169 N.J. 609, 782 A.2d 427 (2001). The State’s cross-petition for certification challenging the Appellate Division’s vacation of the three-year parole disqualifier was granted. Ibid. While this appeal was pending, the United States Supreme Court granted certiorari in Harris v. United States on December 10, 2001. 534 U.S. 1064, 122 S.Ct. 663, 151 L.Ed.2d 578 (2001). We heard oral arguments on January 2, 2002, and decided to withhold disposition until Harris was decided. Harris was decided on June 24, 2002. Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). After supplemental briefs were filed with this Court, the case was reargued before us on November 18, 2002.

II.

The State argues that the Appellate Division erred in interpreting Johnson to require that the jury, rather than the judge, had to decide whether defendant was intoxicated before the sentence enhancement statute could be applied. In its supplemental brief, the State maintains that “[t]he decision of the United States Supreme Court in Harris [, supra, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524,] mandates a reversal of the Appellate Division in this case.” The State contends “that the mandatory parole term required under N.J.S.A. 2C:11-5b(l) when a vehicular homicide is committed by an individual who is under the influence of alcohol fully complies with all federal and state constitutional principles.”

A.

Our analysis of the issues presented must begin with the vehicular homicide statute and its sentencing provisions. The current vehicular homicide statute that has been in effect since 1995 provides:

a. Criminal homicide constitutes vehicular homicide when it is caused by driving a vehicle or vessel recklessly.

b. Except as provided in [N.J.S.A. 2C:ll-5b(3) ], 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 Director of the Division of Motor Vehicles 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 Director of the Division of Motor Vehicles 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.

[NJ.S.A 2C:11-5a, -5b(1) and (2).]

Subsection a describes what constitutes the offense of vehicular homicide. The “[prescribed culpability requirement applies to all material elements” of the offense. N.J.S.A. 2C:2-2c(l). Intoxication in combination with other evidence or standing alone may satisfy the recklessness element. State v. Jamerson, 153 N.J. 318, 335, 708 A.2d 1183 (1998); State v. LaBrutto, 114 N.J. 187, 204, 553 A.2d 335 (1989); State v. Casele, 198 N.J.Super. 462, 472, 487 A.2d 765 (App.Div.1985). In other words, a defendant’s sobriety or insobriety is only one of several circumstances a jury is permitted to consider when deciding whether the element of recklessness, as defined in N.J.S.A. 2C:2-2b(3), has been established beyond a reasonable doubt. LaBrutto, supra, 114 N.J. at 204, 553 A.2d 335; see State v. Dively, 92 N.J. 573, 583 n. 7, 458 A.2d 502 (1983). Some of the other circumstances, other than intoxication, that are considered in relation to recklessness regardless of whether or not the operator was intoxicated are excessive speed, weather and lighting conditions, and known substantial safety defects in the motor vehicle or vessel. See, e.g., DeLuca, supra, 108 N.J. at 109, 527 A.2d 1355.

Subsection b of the statute focuses on the sentencing provisions for a second-degree vehicular homicide. That subsection mandates a minimum period of incarceration for a defendant convicted of vehicular homicide if that defendant is found by a judge, after conducting a hearing prescribed by N.J.S.A. 2C:ll-5b(2), to have been intoxicated at the time of the offense. In order to better understand the critical issue raised, with respect to the sentence enhancement, we must give context to the procedural framework in which the issue is presented.

B.

This is a typical case in which a defendant charged with vehicular homicide also is likely to be charged with DWI and other Title 39 offenses. To avoid double jeopardy based on “multiple punishments for the same offense,” DeLuca, supra, 108 N.J. at 102, 527 A.2d 1355 (internal citations omitted), the vehicular homicide and the Title 39 offenses must be consolidated for disposition. A jury hears the indictable-vehicular homicide as well as lesser-included disorderly and petty disorderly persons offenses. State v. Muniz, 118 N.J. 319, 327-32, 571 A.2d 948 (1990). Although Title 39 offenses such as DWI and careless driving are lesser-included offenses of the indictable-vehicular homicide offense for the purposes of the Double Jeopardy Clause, they are heard by the judge presiding over the jury trial who must “base his or her decision on the proofs adduced in the course of the [vehicular homicide] charge.” DeLuca, supra, 108 N.J. at 111, 527 A.2d 1355; Muniz, supra, 118 N.J. at 331 n. 1, 571 A.2d 948. Nonetheless, a defendant is entitled to have the jury instructed, as occurred in this case, that there are lesser-ineluded motor vehicle offenses for which the judge must decide defendant’s guilt or innocence. Muniz, supra, 118 N.J. at 332, 571 A.2d 948; State v. Brown, 228 N.J.Super. 211, 224, 549 A.2d 462 (App.Div.1988), rev’d on other grounds, 118 N.J. 595, 573 A.2d 886 (1990). Consistent with' the foregoing long-established policy and Rule 3:15-3, the jury in this case decided the vehicular homicide charge and the judge decided the Title 39 offenses, including the DWI. Needless to say, the judge applied the required beyond a reasonable doubt standard. See State v. Emery, 27 N.J. 348, 353, 142 A.2d 874 (1958).

Not infrequently, the State will rely on intoxication alone, or in combination with other circumstantial evidence, to establish the recklessness element of vehicular homicide. When intoxication is the sole basis to establish reckless operation of a motor vehicle or vessel before the jury, and if the jury convicts the defendant of vehicular homicide, the role of the judge in finding intoxication for sentence enhancement under N.J.S.A. 2C:11-5b(2) is simple. No hearing is required, for unless the judge accepts the jury’s finding of intoxication, the jury verdict cannot stand and there can be no DWI conviction. DeLuca, supra, 108 N.J. at 111, 527 A.2d 1355.

But when a defendant is on trial for both vehicular homicide and DWI and the State relies on intoxication and other circumstantial evidence to establish recklessness, unless a special interrogatory is submitted to the jury, there is no way of knowing the basis for the jury’s finding of recklessness. Under the existing law, no purpose would be served by special interrogatories. The recklessness element does not require juror unanimity when mixed evidence of recklessness is presented. See, e.g., State v. Frisby, 174 N.J. 583, 596-600, 811 A.2d 414 (2002); State v. Camacho, 153 N.J. 54, 69-72, 707 A.2d 455 (1998), cert. denied, 525 U.S. 864, 119 S.Ct. 153, 142 L.Ed.2d 125 (1998). Nor is a special interrogatory helpful in a merger context for two reasons. First, merger is not required when there is mixed evidence of recklessness such as excessive speed and intoxication. DeLuca, supra, 108 N.J. at 109, 527 A.2d 1355; State v. Baumann, 340 N.J.Super. 553, 556-57, 775 A.2d 3 (App.Div.2001); State v. Mara, 253 N.J.Super. 204, 213-14, 601 A.2d 718 (App.Div.1992); State v. Devlin, 234 N.J.Super. 545, 553-54, 561 A.2d 280 (App.Div.), certif. denied, 117 N.J. 653, 569 A.2d 1348 (1989); State v. Travers, 229 N.J.Super. 144, 151, 550 A.2d 1281 (App.Div.1988). Second, even when the DWI merges with vehicular homicide, the sentencing court must nonetheless impose the DWI penalties. State v. Wade, 169 N.J. 302, 303, 777 A.2d 346 (2001); Baumann, supra, 340 N.J.Super. at 556-57, 775 A.2d 3, Travers, supra, 229 N.J.Super. at 150-51, 550 A.2d 1281.

Here, the State relied on mixed evidence to prove recklessness, and because there is no right to trial by jury on DWI and other Title 39 charges, Blanton v. North Las Vegas, 489 U.S. 538, 543-44, 109 S.Ct. 1289, 1293, 103 L.Ed.2d 550, 556 (1989); State v. Hamm, 121 N.J. 109, 112-30, 577 A.2d 1259 (1990), cert. denied, 499 U.S. 947, 111 S.Ct. 1413, 113 L.Ed.2d 466 (1991); State v. Graff, 121 N.J. 131, 135, 577 A.2d 1270 (1990), the trial judge decided the Title 39 offenses, except the DWI, immediately after the jury convicted defendant of vehicular homicide. The judge thereafter conducted the sentence enhancement hearing simultaneously with deciding the DWI charge. After finding defendant guilty of DWI, the judge used that finding of intoxication to impose the mandatory three-year term on the vehicular homicide conviction.

III.

Next, we consider whether the federal or New Jersey constitution requires the jury, rather than the judge, to make the determination whether defendant was intoxicated for sentence enhancement purposes. The Due Process Clause of the Fourteenth Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970). Although Article I of the New Jersey Constitution does not specifically enumerate the right to due process, it protects “ ‘values like those encompassed by the principiéis] of due process.’ ” Doe v. Poritz, 142 N.J. 1, 99, 662 A.2d 367 (1995) (internal citations omitted). The right to trial by jury of all serious crimes (indictable offenses in New Jersey) is guaranteed by the United States Constitution, art. Ill, § 2, cl. 3 and the Sixth Amendment, which has been made applicable to the states through the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).

A similar right to trial by jury is guaranteed under the New Jersey Constitution. N.J. Const, art. I, ¶ 9. “Hence, an accused is constitutionally entitled to have a jury find each ... element [of the offense charged] beyond a reasonable doubt before he or she is convicted.” State v. Anderson, 127 N.J. 191, 200, 603 A.2d 928 (1992). But there is no right to trial by jury of DWI or other Title 39 offenses because they are not deemed to be serious enough. Blanton, supra, 489 U.S. at 543-44, 109 S.Ct. at 1293, 103 L.Ed.2d at 556-57; Hamm, supra, 121 N.J. at 111, 577 A.2d 1259, Graff, supra, 121 N.J. at 135, 577 A.2d 1270. In view of those constitutional principles, the issue in this case is whether intoxication is truly a sentence enhancer under N.J.S.A 2C:11-5b(2) or an element of vehicular homicide.

There is no litmus test for determining what is an element of a crime. Hence, we begin our analysis with the New Jersey Code of Criminal Justice, N.J.S.A 2C:1-1 to 104-9 (Code). N.J.S.A. 2C:1-14h defines an element of an offense as follows:

“Element of an offense” means (1) such conduct or (2) such attendant circumstances or (3) such a result of conduct as

(a) Is included in the description of the forbidden conduct in the definition of the offense;

(b) Establishes the required kind of culpability;

(c) Negatives an excuse or justification for such conduct;

(d) Negatives a defense under the statute of limitations; or

(e) Establishes jurisdiction or venue.

[Ibid.]

The focus in this appeal respecting the vehicular homicide will be on N.J.S.A. 2C:l-14h(l), (2), (3)(a) and (b). Because the issue of whether a sentence enhancement factor should be decided by the jury is intertwined with whether such a factor is an element of the offense tried before the jury, an initial review of recent United States Supreme Court decisions in this area will be informative.

We disagree with Justice Zazzali’s dissent concluding “that when the finding of any fact triggers imposition of a minimum period of imprisonment a jury must find that fact beyond a reasonable doubt.” Post at 105, 820 A.2d at 655. Under that holding, he would invalidate many mandatory parole ineligibility statutes, including Vehicular Homicide, N.J.S.A. 2C:11-5b(l) and b(2); the Repeat Sex Offender Act, N.J.S.A 2C:14-6; the Three Strikes Law, N.J.S.A. 2C:43-7.1a and 7.2; the Graves Act, N.J.S.A. 2C:43-6c; and the criteria for extended term sentences, N.J.S.A. 2C:44-3. His reliance on our State Constitution ignores six prongs of a seven-part standard “for determining when to invoke our State Constitution as an independent source for protecting individual rights.” State v. Hunt, 91 N.J. 338, 363-68, 450 A.2d 952 (1982) (Handler, J., concurring). The dissent refers only to the textual language and does not analyze the legislative history, preexisting state law addressing sentence enhancement factors and parole ineligibility terms, structural differences between the federal and our State Constitutions, whether sentence enhancement and parole ineligibility are peculiar to New Jersey and do not require a uniform national policy, New Jersey’s history and tradition of providing trial by jury where such a right does not exist at common law or by statute, or distinctive public attitudes, which are less important than the other six components. Id. at , 450 A.2d 952. Here, the dissenters’ use of our State Constitution to require a jury trial on the issue of intoxication as a predicate to parole ineligibility “spring[s] from pure intuition ... rather [than] from a process that is reasonable and reasoned.” Id. at 367, 450 A.2d 952.

We also disagree with the dissenters’ reliance on this Court’s decision in Johnson, supra, 166 N.J. 523, 766 A.2d 1126, to support their conclusion that a jury trial is required on all factual predicates for parole ineligibility terms. The reference in Johnson to the fact that a term of parole ineligibility is the “ ‘real time’ ” was intended by the Court merely to strengthen the constitutional doubt holding by demonstrating the difference between an eighty-five percent NERA term and other parole disqualifiers that are generally capped at fifty percent of the base term. Id. at 541, 766 A.2d 1126 (quoting State v. Mosley, 335 N.J.Super. 144, 157, 761 A.2d 130 (App.Div.2000), certif. denied, 167 N.J. 633, 772 A.2d 934 (2001)). To the extent that Johnson can be read in any way to suggest that jury trials are required on sentence enhancement factors when there is no constitutional doubt, we disavow that suggestion.

The dissent is based on the apparent belief that the sentence of three years without parole eligibility is too harsh. However, the Legislature has graded the crime committed by defendant second degree, and that represents “a legislative recognition of how harmful society perceives this crime to be.” State v. Thomas, 166 N.J. 560, 575, 767 A.2d 459 (2001). In order to reach the unwarranted conclusion that N.J.S.A. 2C:ll-5b(l) and b(2) are unconstitutional, the dissent mistakenly treats intoxication, which is a sentence enhancement factor, as if it were an element of second-degree vehicular homicide.

Similarly, we disagree with Justice Long’s dissent in which she concludes that intoxication is an element of second-degree vehicular homicide. That conclusion is based on a self-created chart in which she describes the offense involved in the present case as an “enhanced second-degree vehicular homicide” that involves intoxication as an element. Such an offense is not designated in the Code. Judges and Justices are not permitted to create criminal offenses. The essence of her dissent is the same as that expressed by Justice Zazzali: that every sentence enhancement factor becomes an element of the offense that must be decided by a jury. Such a conclusion is not supported by federal or state law.

The United States Supreme Court has addressed the issue whether certain conduct is a sentence enhancement factor or an element of the offense. McMillan v. Pennsylvania, 477 U.S. 79, 91, 106 S.Ct. 2411, 2419, 91 L.Ed.2d 67, 79 (1986), involved a statute that designated “visible possession of a firearm” as a sentencing enhancement factor. That statute required the judge to impose a minimum term of five years if the enhancer was present. Id. at 81,106 S.Ct. at 2413, 91 L.Ed.2d at 73. The Court held that the Constitution did not require Pennsylvania to treat the sentence enhancer as an element of the offense. Id. at 91,106 S.Ct. at 2419, 91 L.Ed.2d at 79. The Court reasoned that “link[ing] the ‘severity of punishment’ to ‘the presence or absence of an identified fact’ ” did not automatically make that fact an “element.” Id. at 84-85, 106 S.Ct. at 2415, 91. L.Ed.2d at 75 (quoting Patterson v. New York, 432 U.S. 197, 214, 97 S.Ct. 2319, 2329, 53 L.Ed.2d 281, 294 (1977)). Significantly, the Court observed that “the state legislature’s definition of the elements of the offense is usually dispositive[.]” McMillan, supra, 477 U.S. at 85, 106 S.Ct. at 2415, 91 L.Ed.2d at 75.

The Court in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), recognized that Congress is best equipped to determine which factors are sentencing factors and which are elements of the offense. Id. at 228, 118 S.Ct. at 1223, 140 L.Ed.2d at 358. The Almendarez-Torres Court clearly rejected the “rule that any significant increase in a statutory maximum sentence would” [invoke the] constitutional ‘elements’ requirement. Id. at 247, 118 S.Ct. at 1232, 140 L.Ed.2d at 370.

A year later in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the Supreme Court began to examine mandatory-minimum-sentencing statutes under the constitutional doubt doctrine. Id. at 229, 119 S.Ct. at 1217, 143 L.Ed.2d at 317. The constitutional doubt doctrine states that when possible, a statute will be interpreted so that it does not conflict with the Constitution. Id. at 239, 119 S.Ct. at 1222, 143 L.Ed.2d at 323; United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408, 29 S.Ct. 527, 536, 53 L.Ed. 836, 849 (1909). Jones concluded that when a statute can be construed in two ways, one of which creates constitutional questions and the other of which does not, a court is under a duty to adopt the interpretation that does not violate the constitution. Jones, supra, 526 U.S. at 239, 119 S.Ct. at 1222, 143 L.Ed.2d at 323.

The Court in Jones held that provisions of a carjacking statute that established higher penalties to be imposed when the offense resulted in serious bodily injury or death were not merely sentencing considerations but were additional elements of the offense. Id. at 233, 119 S.Ct. at 1219, 143 L.Ed.2d at 319. The Court stated that when a statute is unclear with respect to whether or not the factor is an element of the offense or a penalty aggravator, the Court should look to other federal and state statutes for guidance. Id. at 234-38, 119 S.Ct. at 1220-21, 143 L.Ed.2d at 320-23. The Court in Jones -determined that, in other federal and state statutes, serious bodily injury was considered an element rather than a sentencing factor. Id. at 239, 119 S.Ct. at 1222, 143 L.Ed.2d at 323. Therefore, the Court held that serious bodily injury was an element a jury must find beyond a reasonable doubt. Id. at 251-52,119 S.Ct. at 1228,143 L.Ed.2d at 330-32.

Before the next case reached the Supreme Court, we decided State v. Apprendi, 159 N.J. 7, 731 A.2d 485 (1999), rev’d, 530 U.S. 466, 120 S.Ct. 2348, 147 L. Ed.2d 435 (2000). There, we had to determine whether our hate-crime sentence enhancer, N.J.S.A. 2C:44-3e, violated the Due Process Clause. Defendant pled guilty to two second-degree offenses of possession of a weapon for an unlawful purpose. Apprendi, supra, 159 N.J. at 10, 731 A.2d 485. The ordinary sentence range for those offenses was between five and ten years. N.J.S.A. 2C:43-6a(2). The statute permitted an enhanced sentence in any case in which “[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.” N.J.S.A 2C:44-3e.¹ That sentence enhancer exposed the defendant to a sentence that could double the ordinary sentence for those offenses. We held that because the hate-crime statute resembles McMillan, our “statute plainly does not transgress the limits set out in Patterson [regarding] due process of law---- There is simply no indication that the legislature restructured its criminal code and sentencing structures in an attempt to ‘evade’ the commands of Winship, swpra.” Apprendi, supra, 159 N.J. at 23-24, 731 A.2d 485. “A finding of biased motive or purpose to intimidate ... is a very traditional sentencing factor.” Id. at 24, 731 A.2d 485. A dissenting member of the Court, however, concluded that because the sentence enhancer focused on the defendant’s mental state at the time of the offense and was so “integral” to it, “it must be characterized as an element thereof.” Id. at 30, 731 A.2d 485 (Stein, J., dissenting].

The Supreme Court granted certiorari in Apprendi v. New Jersey and decided the case in 2000. 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435. The Court held that our hate-crime statute is unconstitutional because the motive required for enhancing the penalty was essentially an element. Apprendi, supra, 530 U.S. at 492-93, 120 S.Ct. at 2364, 147 L.Ed.2d at 456-57. The Court in Apprendi concluded that by increasing the defendant’s maximum sentencing exposure based on a judge’s finding under a preponderance of the evidence standard, the hate-crime statute violated the defendant’s due process. Ibid. The Court also held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. at 2362-63,147 L.Ed.2d at 455. The Court expressly stated that it was not overruling McMillan but “limiting] its holding to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury’s verdict — a limitation identified in the McMillan opinion itself.” Apprendi, supra, 530 U.S. at 487 n. 13,120 S.Ct. at 2361 n. 13, 147 L.Ed.2d at 453 n. 13.

The Supreme Court’s decision in Apprendi created a quagmire of unanswered questions in respect of whether trial judges are permitted to determine sentence enhancement factors. Indeed, this Court in Johnson, supra, 166 N.J. at 540, 766 A.2d 1126, found that Apprendi had created constitutional doubt regarding our No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), that “provides for mandatory minimum sentences for convictions constituting ‘violent crimes’ as defined by that statute.” Johnson, supra, 166 N.J. at 527, 766 A.2d 1126. We observed that although no direct constitutional question was presented in Johnson, as the parties had suggested, a question of statutory interpretation was presented, and “depending on how we interpret subsection (e) of NERA, could raise constitutional concerns” under the decisions of the United States Supreme Court. Id. at 540, 766 A.2d 1126. “If we interpret subsection (e) to require a jury to make the ‘violent crime’ finding beyond a reasonable doubt, we will have allayed any concern that NERA violates the Winship doctrine.” Ibid. Consequently, we held that

[b]eeause of the uncertainty expressed by the U.S. Supreme Court respecting the continuing vitality of McMillan, and the broad understanding of ‘punishment’ recognized by this Court, we will construe subsection (e) of NERA to require that the ‘violent crime’ condition must be submitted to a jury and found beyond a reasonable doubt. To do otherwise would be to subject NERA to constitutional challenge.

[Id. at 543-44, 766 A.2d 1126 (footnote omitted).]

In an apparent attempt to stem the confusion occurring across . the country in the aftermath of Apprendi with respect to whether McMillan had been overturned, the Supreme Court granted certiorari in Harris, supra, and decided the case on June 24, 2002. 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524. The defendant in Harris was convicted for drug trafficking under 18 U.S.C.A. § 924(c)(1)(A), which provided that a person who uses or carries a firearm during a drug trafficking crime, “shall, in addition to the punishment ... (i) be sentenced to a term of imprisonment of not less than five years; (ii) if the firearm is brandished, be sentenced to ... not less than 7 years; and (iii) if the firearm is discharged, to be sentenced to ... not less than 10 years.” Harris, supra, 536 U.S. at 550-51, 122 S.Ct. at 2410-11, 153 L.Ed.2d at 533. The Supreme Court held that subsection 924(c)(1)(A) defines a single offense and thus “brandishing” or “discharging” a firearm were sentencing factors that did not require a finding by a jury, but could be determined by the judge. Harris, supra, 536 U.S. at 556, 122 S.Ct. at 2414, 153 L.Ed.2d at 537. The Court reaffirmed McMillan in the following clear language:

McMillan and Apprendi are consistent because there is a fundamental distinction between the factual findings that were at issue in those two cases. Apprendi said that any fact extending the defendant’s sentence beyond the maximum authorized by the jury’s verdict would have been considered an element of an aggravated crime — and thus the domain of the jury — by those who framed the Bill of Rights. The same cannot be said of a fact increasing the mandatory minimum (but not extending the sentence beyond the statutory maximum), for the jury’s verdict has authorized the judge to impose the minimum with or without the finding. As McMillan recognized, a statute may reserve this type of factual finding for the judge without violating the Constitution.

[Ibid]

The Harris Court thus retreated from the position it seemingly had taken in Apprendi wherein the Court appeared to move away from a long tradition of sentencing jurisprudence that restricted the role of the jury to determining the elements of the offense charged and leaving it to the legislature to structure judicial sentencing. In that respect, the Court stated:

That a fact affects the defendant’s sentence, even dramatically so, does not by itself make it an element.

Read together, McMillan and AppreTidi mean that those facts setting the outer limits of a sentence, and of the judicial power to impose it, are the elements of the crime for the purposes of the constitutional analysis. Within the range authorized by the jury’s verdict, however, the political system may channel judicial discretion — and rely upon judicial expertise — by requiring defendants to serve minimum terms-after judges make certain factual findings. It is critical not to abandon that understanding at this late date. Legislatures and their constituents have relied upon McMillan to exercise control over sentencing through dozens of statutes like the one the Court approved in that ease____We see no reason to overturn these statutes or cast uncertainty upon the sentences imposed under them.

[Id. at 567-68,122 S.Ct. at 2419-20,153 L.Ed.2d at 544-45.]

Now that constitutional doubt has been removed from the analysis, which was part of defendant’s Due Process Clause claim, we must now decide whether intoxication was an element of vehicular homicide.

IV.

Given the absence of any litmus test for determining the elements of a particular offense, we turn again to the Code. N.J.S.A. 2C:l-14h instructs that we first examine the statute that makes certain conduct an offense. A vehicular homicide is defined as the death of another person that “is caused by driving a [motor] vehicle or- vessel recklessly.” N.J.S.A. 2C:ll-5a. As such, that second-degree offense has three elements: 1) that the defendant operated a motor vehicle or vessel, 2) that the defendant’s operation of that motor vehicle or vessel caused the death of another person, and 3) that the death of the victim was caused by the defendant’s reckless operation of the motor vehicle or vessel. See, e.g., Casele, supra, 198 N.J.Super. at 472, 487 A.2d 765. “[P]roof of defendant’s intoxication (or blood alcohol concentration) [is] a fact not required for the proof of [vehicular homicide], N.J.S.A. 2C:ll-5.” DeLuca, supra, 108 N.J. at 108, 527 A.2d 1355. Rather than being an element of the offense, intoxication was used in this case as “a mere circumstance to be considered in determining whether” defendant had acted recklessly. Wilson v. State, 60 N.J.L. 171, 184, 37 A. 954 (E. & A. 1897). Not only was intoxication not an element of vehicular homicide, unlike some offenses, it could not have been used in this case to “[negate] an element of the [vehicular homicide] offense.” N.J.S.A. 2C:2-8a; State v. Cameron, 104 N.J. 42, 51, 514 A.2d 1302 (1986). As the Supreme Court observed in Harris, the fact that intoxication “affects the defendant’s sentence, even dramatically so, does not by itself make it an element.” Harris, supra, 536 U.S. at 566, 122 S.Ct. at 2419, 153 L.Ed.2d at 544. Moreover, intoxication does not increase the penalty for vehicular homicide beyond the statutory maximum prescribed for that offense.

V.

Justice Albin in Part I of his dissent has mistakenly concluded that DWI is a lesser-included offense of vehicular homicide in order to justify his conclusion that defendant is entitled to a jury trial on DWI and reckless driving. That dissent fails to recognize that our law draws a distinction between, on the one hand, consolidating DWI and other Title 39 offenses with indictable offenses under the Code to avoid the bar of the Double Jeopardy Clause and, on the other hand, classifying DWI and other Title 39 offenses as lesser-included offenses of indicted Code offenses under N.J.S.A. 2C:l-8 so as to trigger a right to trial by jury. The blurring of that distinction by the dissent is contrary to the express will of the Legislature for more than three-quarters of a century and the constitutional jurisprudence of this State.

Not only was there no request to charge the jury that it had to decide the Title 39 offenses, the judge instructed the jury without objection that the judge would decide them. Consistent with what always has been our law, the court instructed the jury “that there are motor vehicle charges now pending against the defendant. The law requires that I alone decide those motor vehicle charges and I will do so after you have returned your verdict. Obviously your verdict should not depend on how you think I would decide the motor vehicle charges.” The jury trial issue was not raised in the Appellate Division. That issue was raised, for the first time, during the post-Harris oral argument, and even then, it was restricted to an assumption that intoxication is an element of vehicular homicide. Point I of Justice Albin’s dissent, however, does not depend on a finding that intoxication is an element of vehicular homicide and therefore must be decided by a jury. His sua sponte conclusion that DWI and other Title 39 offenses should be decided by the jury impaneled to try the vehicular homicide “converts us from the Court of last resort ... to some sort of super rescue-mission.” Whitfield v. Blackwood, 101 N.J. 500, 501, 502 A.2d 1132 (1986) (Clifford, J., concurring).

Historically, one accused of an indictable offense in New Jersey has a constitutional right to an indictment by a grand jury, N.J. Const, art. I, ¶ 8, and if indicted, to a trial by an impartial petit jury. N.J. Const, art. I, ¶ 9; State v. Maier, 13 N.J. 235, 250, 99 A.2d 21 (1953). Motor vehicle offenses such as DWIs fall within the generic category of petty offenses that do not fit within the Code’s definition of a lesser-included criminal offense. See N.J.S.A. 2C:1-14k; In re Buehrer, 50 N.J. 501, 517-19, 236 A.2d 592 (1967).

The rationale at common law for lesser-included criminal offenses being covered by an indictment is based on the notion that the grand jury considered the lesser offense as an ingredient of the greater criminal offense. State v. Johnson, 30 N.J.L. 185, 186 (Sup.Ct.1862). The lesser-included criminal offense must be of “the same general character as that charged” in the indictment. Ibid. In other words, the lesser-included criminal offense must be for a lower-degree offense that “is necessarily included in the higher one charged in the indictment,” State v. Staw, 97 N.J.L. 349, 350, 116 A. 425 (E. & A.1922) (citation omitted), or a “necessary ingredient” of the indicted offense, State v. Talley, 94 N.J. 385, 388, 466 A.2d 78 (1983). Hence, by 1942 there was a “well-established rule that the accused may be convicted of any crime of a lesser grade or degree, provided it is an ingredient of the greater offense alleged [in the indictment] and is therefore included therein.” State v. Newman, 128 N.J.L. 82, 84, 24 A.2d 206 (Sup.Ct.1942) (citation omitted). The foregoing common law rationale was adopted in the pre-Code case of State v. Saulnier, 63 N.J. 199, 205, 306 A.2d 67 (1973), holding that “a defendant may be found guilty of a lesser [criminal] offense ... included in the greater offense charged in the indictment.... ”

The Code embodies the statutory and common law with respect to criminal offenses. Title 39, on the other hand, of which DWI is a part, is referred to as “Motor Vehicles and Traffic Regulation.” N.J.S.A. 39:1-1 to:13-8. DWI is proscribed at N.J.S.A. 39:4-50 and it is a part of Article 9 that relates to “Operation of or Acts Affecting Operation of Vehicles and Street Cars.” In contrast, the Code relates to criminal conduct exclusively. Toward that end, the Code establishes a framework for prosecuting multiple criminal offenses. It provides that “[w]hen the same [criminal] conduct of a defendant may establish the commission of more than one [criminal] offense, the defendant ... may not ... be convicted of more than one offense if ... [o]ne offense is included in the other, as defined in subsection d. of this section.” N.J.S.A. 2C:1-8a(l). Subsection d states: “A defendant may be convicted of [a criminal] offense included in an offense charged whether or not the included offense is an indictable [criminal] offense.” N.J.S.A. 2C:1-8d. Subsection e instructs the trial court not to “charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included [criminal] offense.” N.J.S.A. 2C:l-8e. Clearly, all of N.J.S.A. 2C:1-8 applies to criminal offenses and not traffic-regulatory offenses.

The Code classifies three types of criminal offenses: 1) crimes of the first, second, third and fourth degree, 2) disorderly persons offenses, and 3) petty disorderly persons offenses. N.J.S.A. 2C:1-4a and b. Some of the crimes, disorderly persons and petty disorderly persons offenses are defined in statutes of this State outside the Code. When such statutes outside the Code declare a criminal offense to be a misdemeanor and “provides a maximum penalty of six months’ imprisonment or less, ... such provision shall constitute a disorderly persons offense.” N.J.S.A. 2C:l-4e. Generally, when other non-Code criminal offenses are described as misdemeanors without specifying a maximum term of imprisonment, those offenses “constitute for purpose of sentence a crime of the fourth degree.” N.J.S.A. 2C:43-lb; N.J.S.A 2C:l-5b. Non-Code criminal offenses “designated as a high misdemeanor shall constitute for the purpose of sentence a crime of the third degree.” N.J.S.A. 2C:43-lb.

Although DWI was a misdemeanor when first enacted, L. 1909, c. 127, it was reduced to a disorderly persons offense four years later. L. 1913, c. 67; State v. Hamm, supra, 121 N.J. at 119, 577 A.2d 1259. Finally, in 1921 “the Legislature downgraded DWI to a motor-vehicle offense, reaffirming and expanding the penalties in the 1913 law. L. 1921, c. 208, § 14(3), p. 665.” Hamm, supra, 121 N.J. at 120, 577 A.2d 1259. Consequently, since 1921, DWI and other Title 39 offenses have been characterized as “petty offenses.” State v. Senno, 79 N.J. 216, 223, 398 A.2d 873 (1979); State v. Macuk, 57 N.J. 1, 9, 268 A.2d 1 (1970). For example, this Court stated half a century ago that reddess driving violated a regulatory code and was not an offense within the contemplation of the New Jersey constitutional double jeopardy provision. State v. Shoopman, 11 N.J. 333, 340, 94 A.2d 493 (1953). Thus, “[t]he legislative and judicial history of DWI in New Jersey shows ... its consistent treatment as a non-criminal offense.” Hamm, supra, 121 N.J. at 129, 577 A.2d 1259.

The Code provides that “[t]he provisions of the Code not inconsistent with those of prior laws shall be construed as a continuation of such laws.” N.J.S.A. 2C:l-le. Guided by that rule of construction, we reaffirm our view that under the plain language of the Code, DWI and other Title 39 offenses are not “included criminal offenses.” In view of the legislative policy reflected in the Code and in Title 39 “with respect to the joinder of lesser-included offenses, the Code standards do not permit, and the common-law policies do not require, the ... submission to and disposition by a jury of motor vehicles violations in conjunction with its determination of offenses under the Code” when Title 39 offenses are consolidated with an indictable offense for trial. Muniz, supra, 118 N.J. at 331-32, 571 A.2d 948.

DWI and other Title 39 offenses are consolidated for trial with indicted offenses, not because they are lesser-included criminal offenses of the crimes charged in an indictment, but because our jurisprudence and Rule 3:15 — 3(a)(1) require consolidation of even Title 39 offenses to avoid double jeopardy problems. State v. DeLuca, supra, 108 N.J. at 102-111, 527 A.2d 1355; State v. Dively, supra, 92 N.J. at 578, 458 A.2d 502. When consolidation of criminal offenses is required to avoid double jeopardy problems, the jury must decide lesser-included crimes as well as disorderly and petty disorderly persons offenses because they are criminal offenses and it is presumed that the grand jury would have intended to include them within the four corners of the indictment. Viewed in that context, the indictment provides sufficient notice to the defendant. The same fact finder, the jury in a jury trial, must decide all of the criminal offenses — the indicted and the lesser-included criminal offenses — as required by the Code. N.J.S.A 2C:l-8d and e; R. 3:15-3(a)(2).

Requiring consolidation of all offenses for trial that are “based on the same conduct or arising from the same episode,” R. 3:15-3(a), to avoid double jeopardy problems, is not dispositive of whether the jury hearing the indicted offense or the presiding judge should decide the lesser offense. Although Dively, supra, 92 N.J. at 586, 458 A.2d 502, held that motor vehicular violations are subject to the Double Jeopardy Clause, that case did not indicate who should decide the Title 39 offenses after consolidation with the indicted offense. The Court in DeLuca acknowledged that various procedures had been suggested for handling “the death-by-auto charge, which may be tried before a jury and the DWI charge, as to which there is no right to trial by jury.” DeLuca, supra, 108 N.J. at 111, 527 A.2d 1355. Based on the absence of a constitutional right to trial by jury on the DWI offense, the Court protected the constitutional right to trial by jury on the death-by-auto and required the presiding judge to decide the Title 39 offense just as a municipal court judge would. Ibid. That principle was reaffirmed two and a half years later in Muniz, supra, 118 N.J. at 331-32, 571 A.2d 948. That was a reasonable and efficient accommodation that implements a defendant’s constitutional right to trial by jury. As noted previously, because Title 39 offenses are afforded double jeopardy protection, they must be consolidated with indicted offenses, but they are not lesser-included offenses under N.J.S.A. 2C:l-8.

Recognizing the need to retain separation between two competing constitutional strains, see State v. Johnson, 171 N.J. 192, 205, 793 A.2d 619 (2002); State v. Welsh, 84 N.J. 346, 354, 419 A.2d 1123 (1980), the Court in DeLuca and Muniz enforced the Double Jeopardy Clause without imposing a new requirement of a right to trial by jury for Title 39 offenses when no such right has existed at least since 1913 when DWI was downgraded from a misdemean- or to a disorderly persons offense. Unlike the dissent, we believe that “ ‘[l]aws, like houses, lean on one another.’” State v. Papasavvas, 170 N.J. 462, 522, 790 A.2d 798 (2002) (Coleman, J., dissenting) (quoting Edmund Burke, Tracts Relating to Popery Laws (1765), reprinted in IX The Writings and Speeches of Edmund Burke 452, 453 (Paul Langford et al. eds.1991)). The dissent’s conclusion that there should be a jury trial on the Title 39 offenses has no foundation in our Constitution, the jurisprudence of this Court, Rule 3:15-3, or legislative enactments. Hence, the dissent’s conclusion represents a drastic and an unwarranted departure from the existing law. Any change in the law to require trial by jury on DWI and other Title 39 offenses “should properly be by legislative, rather than judicial, judgment.” Hamm, supra, 121 N.J. at 129, 577 A.2d 1259.

VI.

We conclude, therefore, that because there is no right to trial by jury on a DWI offense or on the issue of intoxication for sentence enhancement purposes, because there is substantial credible evidence in the record to support the judge’s determination of intoxication, and because there is no constitutional doubt following Harris, the Appellate Division erred in vacating the three-year term of parole ineligibility.

The judgment of the Appellate Division is reversed and the judgment of the Law Division is reinstated.

LONG, J., dissenting.

Whatever else may be encompassed within the notion of “element of an offense,” it must, as a matter of logic and common sense incorporate a description of the forbidden conduct. N.J.S.A. 2C:ll-5 sets forth three entirely separate vehicular homicide offenses, each describing different conduct that the Legislature sought to interdict. The constituent elements of each of those offenses are as follows:

Offense Elements

First-degree vehicular homicide (10-20 year term)

Enhanced second-degree vehicular Homicide (5-10 year term with a mandatory three-year parole disqualifier)

Second-degree vehicular homicide (5-10 year term)

1. Causing death

2. Driving a vehicle recklessly

3. While intoxicated or while license revoked

4. On school property or a school crossing

1. Causing Death

2. Driving a vehicle recklessly

3. While intoxicated or while license revoked

1. Causing Death

2. Driving a vehicle recklessly

As is evident from that diagram, the statute describes three discrete offenses on an escalating scale of seriousness. The level of seriousness is directly related to the accelerating egregiousness of the defendant’s conduct. That conduct, in turn, is expressed by the number of elements in each offense. The ordinary second-degree offense has two elements — causing death and driving recklessly; the enhanced second-degree offense with mandatory parole ineligibility adds a third — intoxication; and the first-degree offense adds a fourth — school premises. The substance of the scheme could not be clearer, yet the Court allows the Legislature to wink and call intoxication in the enhanced second-degree offense a sentencing factor, thus removing it from the jury’s ambit.

At the very least, and as a matter of ordinary statutory interpretation, when a term is used more than once in a statute, it should have the same meaning and status in both places. Because it is conceded that intoxication is an element of the first-degree offense, how can it not be an element of the enhanced second-degree offense? The result is that a defendant charged with first-degree vehicular homicide, is entitled to a jury determination on intoxication whereas a defendant charged with enhanced second-degree vehicular homicide is not. There is no logical justification for such a scheme.

One final note, the majority’s suggestion that I have impermissibly “created” a criminal offense in my structural dissection of N.J.S.A. 2C:ll-5 is wide of the mark. Every act of statutory interpretation, the point of which is eschewing formalism in favor of substance, is exactly such a “creation.” That is what we are here for — to strip away artifice and lay bare the statutory scheme for what it is.

For the reasons I have expressed, I therefore dissent, joining my colleagues Zazzali and Albin.

Justices ZAZZALI and ALBIN join in this dissent.

1 This section of the statute was deleted by amendment P.L.2001, c. 443.