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

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 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

December 9, 2020
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(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 adequately 

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 
10 A-2813-18T1

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.
11 A-2813-18T1

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 
12 A-2813-18T1

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 "crossreference 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. 
13 A-2813-18T1

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 
14 A-2813-18T1

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.
15 A-2813-18T1

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 
16 A-2813-18T1

and other conditions comprising defendant's conviction for refusal in violation 

of N.J.S.A. 39:4-50.4a.