consent

Franchise Tax Board of California v. Hyatt (Hyatt III) is a win for state sovereignty, albeit an obscure victory. In this case the Supreme Court overturned precedent to hold 5-4 that states are immune from private lawsuits brought in courts of other states.

Since 1993 Gilbert Hyatt and the Franchise Tax Board of California (FTB) have been involved in a dispute over Hyatt’s 1991 and 1992 tax returns. FTB claims that Hyatt owes California taxes from income he earned in California. Hyatt claims he lived in Nevada during the relevant time period. Hyatt sued FTB in Nevada claiming FTB committed a number of torts during the audit.

Most, if not all, states have adopted “implied consent” laws where drivers may be tested if police have probable cause to suspect they have been driving while intoxicated. Drivers may withdraw consent and refuse to take a test, subject to penalties. In Birchfield v. North Dakota (2016) the Supreme Court held that generally police must obtain a warrant to require a blood test (versus a breath test) where officers have probable cause.

But what if a driver is unconscious and unable to withdraw consent to a blood test (and unable to take a breath test)? Wisconsin and 28 other states allow warrantless blood draws of unconscious drivers where police have probable cause to suspect drunk driving.

The question the Supreme Court will decide in Mitchell v. Wisconsin is whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.

State implied consent statutes criminalizing a person’s refusal to take a warrantless chemical blood alcohol test upon suspicion of drunk driving are constitutional, argues the State and Local Legal Center (SLLC) in a Supreme Court amicus brief.

All 50 states have adopted implied consent laws requiring motorists as a condition of driving in the state to consent to a blood alcohol content (BAC) test if they are suspected of drunk driving. If motorists refuse to consent typically their driver’s license is temporarily suspended. NCSL reports that 15 states also currently criminalize refusal to consent. Criminal penalties typically include fines and jail time.