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Marez v. State3/17/1995
he other. For example, a refusal to take the breath-alcohol test can support revocation of a driver's license despite acquittal or dismissal of the criminal DWI charge. See ; Price v. Reed , 725 P.2d 1254, 1260 (Okla. 1986). See also ) (decision in civil revocation proceeding that the breath test given to defendant was not administered pursuant to the provisions of the Implied Consent Act is not binding on the subsequent criminal proceeding), cert. denied , 113 N.M. 690, 831 P.2d 989 (1992).
We need not consider the constitutionality of Section 66-8-102(D). If this appeal involved a criminal prosecution of Marez under that provision, a constitutional challenge would be appropriate. But this appeal concerns only the license-revocation proceeding. The record does not reveal whether any criminal prosecution was undertaken against Marez or whether any criminal penalties were assessed against him. Marez thus lacks standing to argue the unconstitutionality of the criminal statute. See (" o attain standing in a suit arguing the unlawfulness of governmental action, the complainant must allege that he is injured in fact or is imminently threatened with injury, economically or otherwise.").
Marez attempts to avoid the standing question with his argument of global unconstitutionality. Constitutional review is not so blunt an instrument as envisioned by Marez. There are numerous examples of statutory provisions which have been selectively reviewed and deemed unconstitutional without affecting the viability of companion, non-offensive provisions. See, e.g. , ) ("It is a fundamental principle that a part of a statute may be invalid and the remainder valid, where the invalid part can be separated from other portions, without impairing the force and effect of the remaining portions."); . It is now a commonplace technique of legislative drafting to provide for survival of non-affected provisions if portions of a statute or regulation are found to be invalid. The statute that enacted Section 66-8-102(D) includes just such a severability provision. 1993 N.M. Laws, ch. 66, § 17. There is simply no reason why the purported unconstitutionality of the criminalization of the refusal to submit to chemical testing should affect the Implied Consent Act in other contexts.
Conclusion
We affirm the district court's decision.
IT IS SO ORDERED.
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