legislative authority

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.

In 1986 a majority of the Supreme Court agreed that partisan gerrymandering may be unconstitutional in certain circumstances. But in that case and since then the Court has failed to agree on a standard for when partisan gerrymandering crosses the line.

Last term in Gill v. Whitford the Supreme Court again failed to articulate a standard for unconstitutional partisan gerrymandering. Instead, it held that the challengers failed to demonstrate they had standing to bring their case.

The Supreme Court has agreed to hear two partisan gerrymandering cases this term.

The Supreme Court will decide in Nelson v. Colorado whether it violates due process to require criminal defendants whose convictions have been reversed to prove their innocence by clear and convincing evidence to receive refunds of monetary penalties they have paid.  

Shannon Nelson was convicted of five charges relating to sexually assaulting her children. She was ordered to pay a variety of costs and fees. The appeals court overturned her conviction because the trial court allowed a lay witness to testify about the age at which children have the ability to remember information and relate it accurately. A new jury acquitted her.

She asked the trial court to refund the money she paid in costs and fees. It refused ruling that the legislature has not given it authority to issue refunds.