SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2813-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STANLEY J. KAZANOWSKI,
Defendant-Appellant.
___________________________
Submitted November 12, 2020 – Decided December 9, 2020
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Municipal Appeal No. 6193.
John Menzel, attorney for appellant.
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Mark Niedziela, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Stanley Kazanowski appeals from his conviction, following a
de novo trial in the Law Division, of refusal to submit to a chemical breath test
(refusal) in violation of N.J.S.A. 39:4-50.4a after his arrest for driving while
under the influence of intoxicating liquor (DWI) under N.J.S.A. 39:4-50.
Defendant contends his conviction for refusal should be reversed because the
summons-complaint charged him with violating the implied consent statute,
N.J.S.A. 39:4-50.2, instead of the refusal statute, N.J.S.A. 39:4-50.4a.
Defendant also contends his conviction should be reversed because the police
department did not have a standard procedure for requesting chemical breath
tests or for allowing an individual to obtain an independent test of a breath
sample. Having reviewed the record and the arguments of the parties in light of
the applicable law, we find no merit to defendant's contentions and affirm.
I.
On September 3, 2016, a Wanaque Borough police officer conducted a
stop of a motor vehicle driven by defendant. The officer detected the odor of
alcohol from inside the vehicle. After defendant "fumbl[ed] with documents,"
admitted having consumed alcohol, and performed poorly on field sobriety tests,
he was arrested for DWI.
Later, at the police station, the officer read defendant the standard
statement required by N.J.S.A. 39:4-50.2(e) advising defendant of the
consequences of a refusal to consent to a breath test. N.J.S.A. 39:4-50.2(e)
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provides that an officer shall "inform [a] person arrested [for DWI] of the
consequences of refusing to submit to such test in accordance with" the refusal
statute, N.J.S.A. 39:4-50.4a. Defendant twice refused to consent to provide the
requested breath sample.
In separate summonses, defendant was charged with DWI, N.J.S.A. 39:4-
50; failure to maintain lamps, N.J.S.A. 39:3-66; improper display of plates,
N.J.S.A. 39:3-33; and careless driving, N.J.S.A. 39:4-97. The officer also
charged defendant with refusal in violation of N.J.S.A. 39:4-50.2, which
provides that any person operating a motor vehicle shall be deemed to have
consented to providing a breath sample to determine "the content of alcohol in
his [or her] blood." The summons charging refusal did not cite to N.J.S.A. 39:4-
50.4a, which defines the offense of refusal.
Prior to trial in the municipal court, defendant requested that the State
provide the police department's "procedures concerning requesting breath
samples and concerning providing for independent testing of the defendant's
blood, breath, or urine." See N.J.S.A. 39:4-50.2(c) (providing in pertinent part
that a person who submits to a chemical breath test "shall be permitted to have
such samples taken and chemical tests of his breath . . . made by a person or
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physician of his own selection"). In response to the request, the State advised
that the police department "has no such standard operating procedures."
Defendant filed a motion to dismiss the summons charging refusal.1
Defendant claimed the summons was defective because it alleged defendant
violated N.J.S.A. 39:4-50.2, the implied consent statute, instead of N.J.S.A.
39:4-50.4a, which defines the offense of refusal. Defendant also argued the
summons should be dismissed because the police department did not have
standard procedures for requesting breath samples and for allowing a defendant
to obtain an independent test of his or her breath.
The municipal court denied defendant's dismissal motion and, following
a trial, the court found defendant not guilty of DWI and the improper display of
plates offense. The court found defendant guilty of failing to maintain lamps in
violation of N.J.S.A. 39:3-66 and of the offense charged in the summons that
1
Defendant also filed a motion to suppress the evidence obtained following the
motor vehicle stop. Defendant argued the police officer did not have a
reasonable articulable suspicion of a motor vehicle offense permitting a lawful
stop of the vehicle. The municipal court conducted an evidentiary hearing on
the motion, rejected defendant's claim the motor vehicle stop was unlawful, and
denied the suppression motion. Defendant renewed the motion on his appeal
from his municipal court conviction. The Law Division denied the motion. We
do not address the facts or issues concerning the motor vehicle stop or
suppression motion, or the Law Division's denial of the motion, because
defendant does not appeal from the denial.
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alleged a violation of N.J.S.A. 39:4-50.2, the implied consent statute. On the
latter charge, the court found defendant guilty because he "refused to take the
breath test."
The court sentenced defendant to pay fines, court costs, and a Drunk
Driving Enforcement Fund surcharge. In addition, the court's sentence on the
refusal charge included a seven-month driver's license suspension, defendant's
participation in twelve hours of education at the Intoxicated Driver Resource
Center, and installation of an ignition interlock device in defendant's vehicle for
six months immediately following his license suspension. The court granted
defendant's request for a stay of the sentence pending appeal from his
convictions.
Defendant appealed his convictions to the Law Division, where he
reprised his motion to dismiss the summons that charged he refused to consent
to the breath test. He again asserted the summons should be dismissed because
it cited the implied consent statute and because the police department did not
maintain a standard procedure for requesting breath samples and allowing
defendants to obtain independent tests of breath samples. The Law Division
judge denied the motion, finding that charging defendant with violating "the
consent statute does not negate his guilt of the refusal statute." The court
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explained that the refusal and implied consent statutes "are interrelated," and
"[a]lthough defendant was not charged with the exact statutory provision
applicable to a refusal violation," he did not suffer any prejudice by being
charged under the implied consent statute.
Quoting directly from the Supreme Court's decision in State v. Marquez,
202 N.J. 485, 501-02 (2010), the court further addressed the relationship
between the statutes, explaining:
The refusal statute requires officers to request
motor vehicle operators to submit to a breath test. The
implied consent statute tells officers how to make that
request. In the language of the statutes, to be convicted
for refusal, [j]udges must find that the driver refused to
submit to the test upon request of the officer.[]
[N.J.S.A.] 39:4-50.4[a]. That test as explicitly noted in
the refusal statute, is the one provided for
in . . . [N.J.S.A. 39:4-50.2]. The implied consent law.
The implied consent statute in turn, directs officers to
read a standard statement to the person under arrest for
the specific [purpose] of informing the person arrested
of the consequences of refusing to submit to such a test
in accordance with section two. Which is [N.J.S.A.]
39:4-50.4[a].
Thus, the statutes not only cross reference one
another internally but they also rely on each other[]
substantively that they must be read together.
Further quoting Marquez, the court concluded "[b]oth statutes are to be
construed 'as part of a harmonious whole,'" id. at 517, and the court found that
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since the officer read defendant the standard statement informing him of the
consequences of a refusal to consent to a breath test, defendant was adequatel y
put "on notice that refusal to give a breath test [would] result in an offense being
charged."
The court also amended the summons to charge defendant with refusal to
consent to a breath sample under the refusal statute, N.J.S.A. 39:4-50.4a. The
court made the "amendment pursuant to [N.J.S.A.] 39:5-11," which provides:
If the defendant appeals to the Superior Court, the
appeal shall operate as a consent to an amendment of
the complaint in that court so as to substitute a new or
different charge growing out of the act or acts
complained of or the circumstances surrounding such
acts; and any provision of law limiting the time within
which any such charge may be brought or proceedings
taken in the prosecution thereof shall not operate and
shall be deemed to have been waived by the appeal.
The court also rejected defendant's claim the summons charging refusal
should be dismissed because the police department lacked a standard procedure
for allowing a defendant to obtain an independent test of a breath sample. The
court noted defendant was found not guilty of DWI, and it determined defendant
did not require an independent test of his breath because he refused to provide a
breath sample in the first instance.
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The court convicted defendant of the amended charge of refusal in
violation of N.J.S.A. 39:4-50.4a and failure to maintain lamps, N.J.S.A. 39:3-
66. The court found the violation for failure to maintain lamps merged with the
refusal conviction, and imposed the same sentence for the refusal charge as the
municipal court.2 The court stayed imposition of the sentence pending
defendant's appeal, finding defendant did not pose a threat to the safety of the
community because he was not convicted of DWI and instead was convicted of
refusal.
Defendant appeals from his conviction for refusal. He makes the
following arguments:
POINT I
This Court Should Dismiss [The Summons] Charging
Defendant with "Consent to Take Breath Samples,
Record" in Violation of N.J.S.A. 39:4-50.2 Because
Reference to This "Implied Consent" Statute
Constitutes a Fatal Defect in that the Statute Does Not
Define an Offense.
POINT II
This Court Should Dismiss Allegations Based on
Defendant's Failure to Submit Breath Samples Because
2
The propriety of the court's merger of the violation for failure to maintain
lamps with defendant's conviction for refusal is not an issue presented on appeal.
We therefore do not address it.
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the Police Department Lacked Procedures Necessary to
Protect His Rights.
II.
In our review of a Law Division decision on a municipal appeal, we
consider "whether the findings made could reasonably have been reached on
sufficient credible evidence present in the record." State v. Stas, 212 N.J. 37,
48-49 (2012) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). "Unlike the
Law Division, which conducts a trial de novo on the record, Rule 3:23-8(a), we
do not independently assess the evidence." State v. Gibson, 429 N.J. Super. 456,
463 (App. Div. 2013), rev'd on other grounds, 219 N.J. 227 (2014). We defer
to the trial judge's findings of fact. Stas, 212 N.J. at 48-49. "[N]o such deference
is owed to the Law Division or the municipal court with respect to legal
determinations or conclusions reached on the basis of the facts." Id. at 49. Our
review of a court's "legal determinations is plenary." State v. Handy, 206 N.J.
39, 45 (2011); see also Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995).
Defendant argues his conviction for refusal should be reversed because
the summons charging his refusal to consent to a breath test originally cited
N.J.S.A. 39:4-50.2, the implied consent statute, and not N.J.S.A. 39:4-50.4a,
which defines the refusal offense. Defendant ignores that he appeals from his
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conviction following a trial de novo in the Law Division, where the court
amended the summons in accordance with N.J.S.A. 39:5-11 to charge a violation
of N.J.S.A. 39:4-50.4a. As a result of the amendment, defendant was not
convicted of violating the implied consent statute, N.J.S.A. 39:4-50.2; he was
convicted of violating N.J.S.A. 39:4-50.4a, the refusal statute.
Defendant did not object to the amendment of the summons to charge
refusal under N.J.S.A. 39:4-50.4a, and he does not challenge on appeal the
amendment of the summons to charge what he concedes and asserts is the proper
statutory citation for the offense of refusing to consent to provide a breath
sample following a DWI arrest. He therefore has waived his right to challenge
both the court's amendment of the summons to charge refusal in violation of
N.J.S.A. 39:4-50.4a, and his conviction in the Law Division for committing that
offense. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011)
(holding that "an issue not briefed on appeal is deemed waived"); Jefferson Loan
Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008) (same). In fact,
defendant does not claim on appeal that the Law Division erred by convicting
him of refusal under N.J.S.A. 39:4-50.4a. For those reasons alone, we affirm
defendant's conviction for violating N.J.S.A. 39:4-50.4a.
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Defendant argues the court erred by failing to dismiss the summons in the
first instance because it erroneously cited to N.J.S.A. 39:4-50.2 instead of the
refusal statute, N.J.S.A. 39:4-50.4a. Defendant relies on State v. Cummings,
where the charging summons and the Law Division's order of conviction in a
refusal case "incorrectly identif[ied] the governing statutory reference as
N.J.S.A. 39:4-50.2, the implied consent section of the driving while intoxicated
provisions of the Motor Vehicle Act, N.J.S.A. 39:1-1 to 39:13-8." 184 N.J. 84,
90 n.1 (2005). The Court explained that "care should be taken to list instead
N.J.S.A. 39:4-50.4a, the exact statutory provision applicable to breathalyzer
refusal cases." Ibid. Defendant argues that because the State did not exercise
that care here, the Law Division judge erred by denying the request to dismiss
the complaint.
We reject defendant's reliance on Cummings for two reasons. First, unlike
in Cummings, the Law Division judge amended the complaint to charge a
violation of N.J.S.A. 39:4-50.4a, and, as noted, defendant does not challenge the
amendment on appeal. Second, the Court in Cummings did not hold that either
dismissal of the summons or a finding of not guilty is required where a defendant
is arrested for DWI and refuses a breath test, and the charging summons cites
N.J.S.A. 39:4-50.2 instead of N.J.S.A. 39:4-50.4a To the contrary, the Court
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found there was "no prejudice resulting from" the citation to the implied consent
statute instead of the refusal statute. Ibid.
Although the officer here should have taken more care to cite to N.J.S.A.
39:4-50.4a in the charging summons, there is no evidence defendant suffered
any prejudice from the officer's failure to do so, and the Court's decision in
Cummings does not require a dismissal of the summons. As the Court explained
in Marquez, "[t]o identify all of the elements of a refusal offense, [the Court]
must look at the plain language of [ N.J.S.A. 39:4-50.2 and N.J.S.A. 39:4-50.4a]
because although they appear in different sections, they are plainly interrelated."
202 N.J. at 501. The statutes "must . . . be read together" because they "cross-
reference one another internally" and "rely on each other substantively." Id. at
502. The Court also held that reading the standard statement as prescribed by
N.J.S.A. 39:4-50.2 is a necessary element of a refusal conviction under N.J.S.A.
39:4-50.4a. Id. at 506. Because the elements of a refusal offense are drawn
from both N.J.S.A. 39:4-50.2 and N.J.S.A. 39:4-50.4a, the officer's failure to
cite to both statutes in the original summons did not deprive defendant of notice
of the refusal offense for which he was charged and convicted, and did not result
in any prejudice.
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We are not persuaded by defendant's reliance on State v. Nunnally, 420 N.J. Super. 58 (App. Div. 2011), to support his claim the summons should be
dismissed because the citation to N.J.S.A. 39:4-50.2 did not provide adequate
notice of the refusal offense. In Nunnally, the defendant held a commercial
driver's license (CDL) and was arrested for operating a commercial vehicle in
violation of N.J.S.A. 39:3-10.13, which "prohibit[s] operation of a commercial
motor vehicle by a driver 'with an alcohol concentration of 0.04% or more.'" Id.
at 62 (quoting N.J.S.A. 39:3-10.13). The defendant failed to properly provide a
breath sample and was charged with refusal under N.J.S.A. 39:4-50.4a instead
of N.J.S.A. 39:3-10.24, which defines the offense of refusal to provide a breath
sample by a person driving a commercial vehicle. Ibid.
We held that the summons could not properly be amended in accordance
with Rule 7:14-2, which allows a municipal court to amend a summons "for any
omission or defect . . . or for any variance between the complaint and the
evidence adduced at the trial" as long as the amendment does not "charge[] a
different substantive offense, other than a lesser included offense." Id. at 65-66.
We reviewed the elements of the refusal offenses under N.J.S.A. 39:4-50.4a and
N.J.S.A. 39:3-10.24, and determined they consisted of different elements. Id. at
66-67. We concluded the requested amendment of the summons to charge the
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defendant with violating N.J.S.A. 39:3-10.24, the CDL refusal statute, was
improper because it was not a lesser included offense of refusal under N.J.S.A.
39:4-50.4a, the offense with which the defendant was originally charged. Ibid.
We further determined that because the statutes defined offenses with different
elements, charging the defendant under the general refusal statute instead of the
CDL refusal statute did not constitute a "technical defect" that could be remedied
through an amendment of the summons pursuant to Rule 7:2-5. 3 Id. at 65.
Our holding in Nunnally is inapplicable here because, as noted, N.J.S.A.
39:4-50.2 and N.J.S.A. 39:4-50.4a do not define different offenses with different
elements. Instead, the statutes must be read together to fully define the elements
of the refusal offense defined in N.J.S.A. 39:4-50.4a. See Marquez, 202 N.J. at
501-02. Thus, the summons charging defendant with violating N.J.S.A. 39:4-
50.2 adequately informed defendant he was charged with refusal under N.J.S.A.
39:4-50.4a, and we find no evidence defendant was prejudiced in any manner
by the State's failure to include a citation to N.J.S.A. 39:4-50.4a in the summons.
3
Under the circumstances presented in Nunnally, we also determined the
summons could not be amended to charge a violation of the CDL refusal statute
because the date of the trial was more than ninety days after the alleged offense
occurred, and the State was therefore time-barred from amending the summons
to charge a new offense. Id. at 62-63.
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See Cummings, 184 N.J. at 90 n.1. We therefore affirm the Law Division's
denial of defendant's motion to dismiss the summons.
We also reject defendant's contention his conviction should be reversed
because the police department did not have a standard procedure for requesting
breath samples and for allowing an independent test of his breath as permitted
by N.J.S.A. 39:4-50.2(c). Under the circumstances presented, the argument is
without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2). We note only that N.J.S.A. 39:4-50.2(c) permits an individual who
submits to a breath test "to have such samples taken and chemical tests of his
breath . . . made by a person or physician of his own selection," but defendant
neither submitted to the breath test requested by the police nor requested to have
a sample of his breath taken or a chemical test of his breath by a person or
physician of his own choosing. In addition, and as noted by the Law Division
judge, defendant was found not guilty of DWI, and, as a result, the lack of an
independent test of defendant's breath is irrelevant to a determination of the
charges—refusal and failure to maintain lamps—for which he was convicted.
Affirmed. We vacate the stay of the sentence imposed by the Law
Division and remand for the court to immediately impose the license suspension
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and other conditions comprising defendant's conviction for refusal in violation
of N.J.S.A. 39:4-50.4a.
