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JAVED v. DEPARTMENT OF PUBLIC SAFETY7/26/1996
e statute might, then, be read in such a way as to include an inquiry into whether the implied consent statutes were actually triggered, i.e., whether the test given or refused was actually administered or authorized under those statutes. If a person who is not driving has not impliedly consented to such a test, then an inquiry into whether the test was authorized under the implied consent statutes could include in its scope whether the person was actually driving.
We accept for purposes of this argument that, under the implied consent statutes, a person may be deemed to have consented to a test only by actually driving. However, the State's argument fails in its interpretation of subsection .166(g) itself. The focus of subsection .166(g)(1)-(3) is clearly on the result of the test or the fact of refusal to take the test. Reading subsection .166(g)(1)-(3) to encompass an inquiry into the underlying facts that justify administration of the test would render the first part of subsection .166(g), regarding the issue of whether the law enforcement officer had reasonable grounds to believe that the person was operating a motor vehicle, almost meaningless. The statute offers very precise limiting language for the issues that are to be considered. There is no reason to believe that the reference to the implied consent statutes is anything more than a descriptive tool used to identify the "chemical test" named in each instance.
Thus, we conclude that AS 28.15.166(g) cannot be interpreted constitutionally.
Alaska Statute 28.15.166(g) Is Unconstitutional as Applied.
A statute may be unconstitutional either on its face or as applied. See Gilmore v. Alaska Workers' Compensation Bd., 882 P.2d 922, 929 n. 17 (Alaska 1994). A statute is facially unconstitutional if "no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987). In most cases the issues set forth in subsection .166(g) are the only issues that need to be determined in order to review the revocation decision. Since AS 28.15.166(g) can be applied constitutionally in many circumstances, it is not facially unconstitutional. To use the terms of the statutory saving clause, AS 01.10.030, the application of the limiting language in the act is only invalid under circumstances in which due process requires that other contested issues be established; in the absence of such circumstances
all of the language of the act may be given application.
The decision of the superior court is REVERSED and REMANDED with instructions to remand to the Department for a new hearing which will include an inquiry into whether Javed was driving.
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