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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 20, 2001

The issue before us is whether the imposition of a mandatory minimum sentence on a conviction of the second-degree crime of vehicular homicide, N.J.S.A. 2C:11-5, is governed by the Supreme Court’s ruling in State v. Johnson, ___ N.J. ___ (2001) (decided February 28, 2001). That is to say, N.J.S.A. 2C:11-5b(1) requires the imposition of a parole ineligibility term of no less than three years if the defendant was driving under the influence of alcohol or drugs at the time of the offense. The question is whether the fact of intoxication must be found by a jury beyond a reasonable doubt as Johnson requires with respect to the predicate fact mandating sentencing under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, or whether the fact of intoxication may be found by the court under a preponderance standard as provided by N.J.S.A. 2C:11-5b(2). Because we are unable to distinguish conceptually between the parole ineligibility term imposed by NERA and that required by the vehicular homicide statute, we hold that the fact mandating parole ineligibility on a conviction of vehicular homicide must be found by the jury beyond a reasonable doubt in accordance with State v. Johnson, supra, ___ N.J. ___. Accordingly, we vacate the parole ineligibility term here imposed.

 
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