STATE OF NEW JERSEY v. KELBY B. KRAMER

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                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2227-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

KELBY B. KRAMER,

     Defendant-Appellant.
_________________________

                    Argued November 6, 2019 – Decided December 27, 2019

                    Before Judge Yannotti and Hoffman.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Morris County, Municipal Appeal No. 18-
                    022.

                    John Menzel argued the cause for appellant.

                    Paula Cristina Jordao, Assistant Prosecutor, argued the
                    cause for respondent (Fredric M. Knapp, Morris County
                    Prosecutor, attorney; Paula Cristina Jordao, on the
                    brief).

PER CURIAM
      The Florham Park Municipal Court convicted defendant of driving while

intoxicated (DWI),  N.J.S.A. 39:4-50, obstructing the administration of the law,

 N.J.S.A. 2C:29-1(a), and reckless driving,  N.J.S.A. 39:4-96.          The court

sentenced defendant to three months loss of driving privileges and assessed

mandatory fines and penalties. Following a de novo trial, the Law Division

again found defendant guilty of the same charges and imposed the same sentence

as the municipal court.

      Defendant filed this appeal. He contends the following arguments warrant

reversal of convictions:

               I.   With Only Observations of Defendant's Eyes,
                    Breath, and Demeanor, Police Had Neither
                    Reasonable Suspicion to Justify Ordering Her to
                    Get Out of Her Car Nor Probable Cause to Arrest
                    Her.

              II.   Because Defendant Fully Cooperated With
                    Police Beginning When They Guided Her Out of
                    Her Car and at All Times Thereafter, the State
                    Failed to Prove Beyond a Reasonable Doubt that
                    She Purposefully Obstructed, Impaired, or
                    Perverted the Administration of Law via
                    Affirmative Interference with Governmental
                    Functions.

             III.   The State Failed to Prove that Defendant Drove
                    Either Recklessly or Carelessly.


After reviewing the record in light of defendant's arguments, we affirm .

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                                          I.

      We derive the following facts from the record. Just before midnight on

October 1, 2016, Officer Daniel Braico of the Florham Park Police Department

observed defendant leave the Wyndham Hamilton Park Hotel in her car and attempt

to turn left and northbound onto Park Avenue.          Instead, she turned into the

southbound lane, placing her head-on with oncoming traffic. Another vehicle

flashed its high beams to alert defendant of her error. Defendant corrected her course

and proceeded to the northbound side of the median.

      Based on these observations, Officer Braico signaled defendant to pull over;

upon asking for her credentials, he immediately "smelled a potent odor of alcohol

emanating from the interior of [her] vehicle and also observed her eyes to be watery

and bloodshot." Asked if she consumed any alcohol, defendant responded she was

"fine."   When asked if that meant she previously drank alcohol, she nodded

affirmatively. Defendant mistakenly thanked Officer Braico multiple times for

warning her of her wrong turn, confusing him with the driver who flashed high

beams at her. Defendant confirmed she had just left a bar located in the hotel.

      Due to his suspicion that defendant was intoxicated, Officer Braico instructed

defendant to exit her vehicle so he could administer field sobriety testing (FST). In

response, defendant questioned why she needed to exit her vehicle and expressed


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concern over performing any testing in her high heels. Officer Braico explained the

FST and, after informing defendant multiple times of his suspicion of DWI, he took

her keys based on his concern defendant would attempt to drive away.

      Officer David Rubelowsky then arrived to provide backup for the stop. He

also instructed defendant to exit her vehicle multiple times, informing her of his

suspicion of DWI, and the need for her to submit to FST; however, defendant

continued to express confusion as to why she needed to exit her vehicle.

      Officer Geoffrey Rothrock also provided backup, detected alcohol on

defendant's breath, and noticed her eyes bloodshot and watery. He explained to her

that she had to exit her vehicle so Officer Braico could continue his investigation of

DWI and administer the FST.         In response, defendant claimed she did not

understand, asked what her options were, and proclaimed she was a "good person."

      Officer Rothrock repeated his instructions and explained he needed a "yes or

no" answer, if she was willing to exit her vehicle, because he believed defendant

intended to stall the investigation. If she did not comply, he explained he would

place her under arrest for obstruction. Defendant did not respond to his warning.

Thereafter, Officers Rothrock and Braico escorted defendant out of her vehicle and

placed her under arrest. While transporting defendant to the police station, Officer

Braico noticed his vehicle smelled of alcohol.


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       At the station, defendant said she consumed only one glass of wine.

According to Officer Rothrock, his first three attempts to administer the Alcotest to

defendant failed because her breath samples were inadequate, as defendant blew

"very softly" into the machine. On the fourth attempt, defendant finally provided an

adequate breath sample, indicating a blood alcohol content (BAC) of .089; a fifth

breath sample indicated a BAC of .091. At that point, the police charged defendant

with the charges under review, and also careless driving,  N.J.S.A. 39:4-97.

       At trial, the municipal court judge found both Officers Braico and Rothrock

"clearly very credible[,]" forthright and consistent in their testimony.            When

addressing the obstruction charge, the judge distinguished defendant's current case

from State v. Powers,  448 N.J. Super. 69 (App Div. 2016), and found defendant

guilty beyond a reasonable doubt because "defendant here repeatedly refused to exit

her vehicle after repeated instructions to do so. . . [t]hat in itself I find constitutes a

physical interference or obstacle satisfying the first prong of 2C:29-1(a)."

       The judge also found defendant guilty of DWI and reckless driving, after

reviewing the officer's testimony and the evidence submitted. He dismissed the

careless driving offense as a lesser-included offense of the reckless driving charge.

       On December 13, 2018, following a trial de novo, the Law Division judge

found defendant guilty of the same charges as the municipal court and issued a


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comprehensive forty-one-page written opinion explaining her decision. The judge

found Officers Braico and Rothrock credible, describing their testimony as "candid

and forthright," with "each officer . . . corroborat[ing]. . . the other officer on a

number of material facts, including the fact that defendant failed on multiple

occasions to abide by officers' instruction that she had to exit her vehicle to undergo

[FST] on the night of the incident."

      The judge first addressed whether the police officers had sufficient reasonable

suspicion of DWI to ask defendant to exit her vehicle. She ruled Officer Braico's

observations of defendant's motor vehicle violation and his observations during his

initial contact permitted him to "broaden[] his inquiry to ask defendant if she had

been drinking." She ruled, "Given defendant[] sidestepping [his] direct question

about whether she had anything to drink by saying she was 'fine,' in addition to what

[he] had just smelled, seen and heard," the officers established reasonable suspicion

to ask defendant to exit her vehicle to perform FST.

      The judge next addressed whether the police officers had probable cause to

arrest defendant for DWI. She found after Officer Braico first observed and pulled

defendant over for careless driving, "he immediately detected a potent odor of

alcohol emanating from the interior of her car and saw that her eyes were bloodshot

and watery." She noted that Officer Rothrock made the same observations when he


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addressed defendant, and that all three officers explained to defendant why she

needed to exit her car, but defendant continued to indicate she did not understand.

      The judge ruled, "In light of the totality of these circumstances, the court finds

[the] officers had a well-grounded suspicion that defendant's consumption of alcohol

had affected her judgement, making it improper for her to drive. Thus, there was

probable cause to arrest defendant on suspicion of DWI."

      The judge then carefully analyzed the evidence present and concluded the

State had proven defendant guilty of DWI by both the per se standard, based on the

BAC readings,  N.J.S.A. 39:4-50(a), and the observational standard. State v. Bealor,

 187 N.J. 574, 590 (2006).

      Addressing whether defendant drove recklessly, the judge found Officer

Braico observed defendant turn into oncoming traffic and drive within twenty feet

of another vehicle, which "suggest[ed] a lack of due caution on her part and creat[ed]

a serious safety concern." She found, independent of defendant's intoxication,

defendant still drove recklessly. She concluded the State demonstrated beyond a

reasonable doubt defendant "drove heedlessly, showed a wanton disregard for the

safety of those around her, and her driving conduct was likely to endanger another

person or property." Therefore, she found defendant guilty of reckless driving.




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       Regarding the obstruction charge, the judge found defendant was "beating

around the bush" and "stalling," when she disregarded the officer's repeated requests

to exit her vehicle. She ruled defendant's actions prevented the officers from

performing their official duties and found that it was "defendant's conscious

object[ive] to avoid exiting the car to perform FST, even though defendant was

physically able to get out of her car."

       Based upon her detailed findings, the trial judge concluded that the State met

its burden in establishing, beyond a reasonable doubt, that defendant was guilty of

DWI, reckless driving, and obstruction.

                                               II.

       In reviewing a judgment of the Law Division on a municipal appeal, this court

applies a sufficiency of the evidence standard. See State v. Ugrovics,  410 N.J. Super.
 482, 487-88 (App. Div. 2009). This court must "determine whether the findings

made could reasonably have been reached on sufficient credible evidence present in

the record." State v. Johnson,  42 N.J. 146, 162 (1964). "When the reviewing court

is satisfied that the findings and result meet this criterion, its task is complete and it

should not disturb the result . . . ." Ibid.

       Superior Court review of a municipal court conviction is conducted de novo

on the record. R. 3:23-8. The Superior Court should defer to the municipal court's


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credibility findings. State v. Locurto,  157 N.J. 463, 470-71 (1999) (citing Johnson,

 42 N.J. at 161-62). However, the municipal court's "interpretation of the law and

the legal consequences that flow from established facts are not entitled to any special

deference." Manalapan Realty, LP v. Twp. Comm.,  140 N.J. 366, 378 (1995). Thus,

"[o]n a de novo review on the record, the reviewing court . . . is obliged to make

independent findings of fact and conclusions of law, determining defendant's guilt

independently but for deference to the municipal court's credibility findings."

Pressler & Verniero, Current N.J. Court Rules, cmt. 1.1 on R. 3:23-8 (2018).

                                          III.

      We first address defendant's argument that the trial court erred in finding

that the arresting officers had reasonable and articulable suspicion of a violation

of law, to support requesting defendant to submit to FST.                Specifically,

defendant claims the observations of Officer Braico and Officer Rothrock

regarding "defendant's eyes, breath, and demeanor" did not provide the requisite

reasonable suspicion of intoxication to request that she exit her vehicle.

      We are guided by well-settled principles. A police officer may, without a

warrant, conduct an investigatory traffic stop based on a reasonable and

articulable suspicion that a defendant committed a traffic offense. "[A] stop

founded on a suspected motor vehicle violation essentially is governed by the


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same case law used to evaluate a stop based on suspected criminal or quasi-

criminal activity." State v. Golotta,  178 N.J. 205, 213 (2003).

            The "articulable reasons" or "particularized suspicion"
            . . . must be based upon the law enforcement officer's
            assessment of the totality of circumstances with which
            he is faced. Such observations are those that, in view
            of [the] officer's experience and knowledge, taken
            together with rational inferences drawn from those
            facts, reasonabl[y] warrant the limited intrusion upon
            the individual's freedom.

            [State v. Davis,  104 N.J. 490, 504 (1986).]

      Reasonable suspicion is a "lower standard than the probable cause

necessary to sustain an arrest." Golotta,  178 N.J. at 213. Reasonable articulable

suspicion may exist even if there is an innocent explanation for the objective

facts. See State v. Citarella,  154 N.J. 272, 279-80 (1998) ("The fact that purely

innocent connotations can be ascribed to a person's actions does not mean that

an officer cannot base a finding of reasonable suspicion on those actions as long

as a reasonable person would find the actions consistent with guilt.") (internal

quotation marks and citation omitted).

      During an investigatory stop, an officer may require a driver to perform

field sobriety tests if the officer has reasonable suspicion of DWI. See State v.

Bernokeits,  423 N.J. Super. 365, 374 (App. Div. 2011) ("In our view,

administration of the field sobriety tests is more analogous to a Terry stop than

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to a formal arrest, and therefore may be justified by a police officer's reasonable

suspicion based on particularized, articulable facts suggesting a driver's

intoxication.").

      We are satisfied that these facts support a reasonable and articulable

suspicion that defendant was driving under the influence, sufficient to warrant

FST. The municipal judge found both officers credible and the trial judge on de

novo review reasonably adopted those same credibility findings. The trial judge

also found Officer Braico – who observed defendant's motor vehicle violation,

talked to defendant and immediately smelled alcohol, and noticed her blood shot

and watery eyes – "properly broadened his inquiry to ask defendant if she had

been drinking."

      During the inquiry, the judge found defendant sidestepped questions

regarding drinking, later nodded in affirmation that she consumed alcohol,

admitted to leaving a bar, and confused Officer Braico on several occasions with

another driver. Additionally, she found Officer Rothrock smelled alcohol on

defendant's breath and observed her bloodshot eyes. The judge's factual findings

clearly establish the officers had reasonable suspicion to request defendant exit

her vehicle to conduct formal FST. Bernokeits,  423 N.J. Super. at 374.




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      We next turn to defendant's obstruction charge. Defendant argues she fully

cooperated with the police officers "beginning when they guided her out of her car

and at all times thereafter, the [S]tate failed to prove beyond a reasonable doubt that

she purposefully obstructed, impaired, or perverted the administration of law via

affirmative interference with governmental functions."

       N.J.S.A. 2C:29-1(a), obstructing administration of law or other governmental

function, provides:

              A person commits an offense if he purposely obstructs,
             impairs or perverts the administration of law or other
             governmental function or prevents or attempts to prevent
             a public servant from lawfully performing an official
             function by means of flight, intimidation, force, violence,
             or physical interference or obstacle, or by means of any
             independently unlawful act. This section does not apply
             to failure to perform a legal duty other than an official
             duty, or any other means of avoiding compliance with law
             without affirmative interference with governmental
             functions.

             [N.J.S.A. 2C:29-1(a).]

      "The purpose of this statute is 'to prohibit a broad range of behavior designed

to impede or defeat the lawful operation of government,'" and confines its limits to

"(1) violent or physical interference, [or] (2) other acts which are 'unlawful'

independently of the purpose to obstruct the government." State v. Camillo,  382 N.J. Super. 113, 116-17 (App. Div. 2005) (quoting Final Report of the New Jersey


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Criminal Law Rev.sion Commission, Vol. II, 1971, at 280). Under the statute, "not

just any interference with the administration of law constitutes the criminal act of

obstruction." Id. at 118.

             Simply obstructing, impairing or perverting the
             administration of law or the governmental function is no
             longer a statutory violation; the obstruction must be
             carried out in a manner described in the statute: "by means
             of flight, intimidation, force, violence, or physical
             interference or obstacle, or by means of any independently
             unlawful act."  N.J.S.A. 2C:29-1.

             [Ibid.]

      Defendant's argument focuses on her cooperative conduct only after the

officers found she obstructed their investigation of her DWI and ignores her actions

prior to her arrest. The municipal judge found her actions constituted a "physical

interference or obstruction." The trial judge agreed, finding it was defendant's

"conscious objective" to delay the officer's investigation of her DWI and she only

exited her vehicle when escorted by the officers.

      We agree with the trial judge's finding that defendant's actions amounted to

obstruction. The record clearly demonstrates defendant's attempts to delay the

officer's investigation of her DWI by not exiting her vehicle to perform FST and by

failing to obey the instructions of three different officers. Officer Braico made

multiple attempts to administer FST to defendant, as did his partner, Officer


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Rubelowsky. After these efforts proved unsuccessful, Officer Braico called Officer

Rothrock for assistance in dealing with defendant's delay tactics. Officer Rothrock

further explained FST to defendant, and then provided her with an ultimatum: either

perform FST or be arrested for obstruction. By failing to comply with the officers'

commands to exit her vehicle to perform FST, she physically interfered with the

investigation of her DWI. See Camillo,  382 N.J. Super. at 118.

      We next turn to defendant's argument that the police did not have probable

cause to arrest defendant for DWI. In finding probable cause, a court must examine

the totality of the circumstances, State v. Moore,  181 N.J. 40, 46 (2004) (citing

Illinois v. Gates,  462 U.S. 213, 238 (1983); State v. Novembrino,  105 N.J. 95, 122

(1987)), "and view those circumstances from the standpoint of an objectively

reasonable police officer." State v. Basil,  202 N.J. 570, 585 (2010) (quoting

Maryland v. Pringle,  540 U.S. 366, 371 (2003) (internal quotation marks omitted)).

      Probable cause for DWI exists where an officer has a well-founded suspicion

that an offense has been committed, State v. Moskal,  246 N.J. Super. 12, 21 (App.

Div. 1991) (citing State v. Wanczyk,  201 N.J. Super. 258, 266 (App. Div. 1985)),

meaning the officer "'had reasonable grounds to believe' that the driver was operating

a motor vehicle in violation of" the DWI statute. Moskal,  246 N.J. Super. at 21

(quoting Strelecki v. Coan,  97 N.J. Super. 279, 284 (App. Div. 1967)). Probable


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cause requires more than a bare hunch or suspicion, but less than the legal evidence

required for conviction beyond a reasonable doubt. State v. Waltz,  61 N.J. 83,

87(1972).

      The trial judge's conclusions are well supported by the testimony of Officers

Braico and Rothrock regarding their observations of defendant, her bloodshot eyes,

her driving into oncoming traffic, her admission of drinking alcohol and leaving a

bar, and her smelling of alcohol. The judge correctly found, based on the totality of

the evidence presented, the officers had "reasonable grounds to believe" defendant

operated her vehicle while intoxicated. Moore,  181 N.J. at 46. We agree with the

trial judge's findings because her analysis is consistent with applicable law and

"could reasonable have been reached on sufficient credible evidence present in the

record." Johnson,  42 N.J. at 162.

      Lastly, we address defendant's reckless driving charge. Defendant argues the

State failed to prove defendant drove either recklessly or carelessly. Specifically,

she argues her driving never "posed any danger to any person or property. Nor was

there willful operation." Under  N.J.S.A 39:4-96, reckless driving states that:

             A person who drives a vehicle heedlessly, in willful or
             wanton disregard of the rights or safety of others, in a
             manner so as to endanger, or be likely to endanger, a
             person or property, shall be guilty of reckless driving and
             be punished by imprisonment in the county or municipal
             jail for a period of not more than 60 days, or by a fine of

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            not less than $50.00 or more than $200.00, or both.

            [N.J.S.A. 39:4-96.]

      The trial judge found defendant turning into oncoming traffic and driving

within twenty feet of another driver showed a wonton disregard for the safety of

others around her. The judge found defendant's conduct "was likely to endanger

another person or property" and, even absent her DWI, found her driving reckless.

The record amply supports these findings.

      Defendant drove on the wrong side of a highway separated by a median and

came within twenty feet of colliding with oncoming traffic. These facts alone

amount to "sufficient credible evidence" to uphold the trial judge's findings that

defendant drove recklessly. Johnson, 43 N.J. at162. Additionally, the judge found

defendant was legally intoxicated based on the per se violation and circumstantial

evidence. Defendant's erratic driving, in addition to her BAC, overwhelmingly

supports the conclusion she drove recklessly. Ebert,  377 N.J. Super. at 12.

      Affirmed.




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