Awad v. State

• Decision Date: 19 January 2022
• Docket Number: S21G0370
• Citation: 313 Ga. 99,868 S.E.2d 219
• Parties: AWAD v. The STATE.
• Court: Georgia Supreme Court

313 Ga. 99

868 S.E.2d 219

AWAD

v.The STATE.

S21G0370

Supreme Court of Georgia.

Decided: January 19, 2022

D. Benjamin Sessions, The Sessions Law Firm, LLC, 3155 Roswell Rd., Ste. 220, Atlanta, Georgia 30305, for Appellant.

Greg Allen Willis, Willis Law Firm, 6000 Lake Forrest Drive, Suite 375, Atlanta, Georgia 30328, Kimberly A. Dymecki, 50 Technology Pkwy. South, Peachtree Corners, Georgia 30092, Hunter Joseph Rodgers, Paulding County Public Defender's Office, 280 Constitution Blvd., Room 1086, Dallas, Georgia 30132, for Amicus Appellant.

Omeeka P. Loggins, Solicitor-General, Augusta-Richmond County Solicitor General's Office, 735 James Brown Blvd, Suite 2500, Augusta, Georgia 30901, Robert Wright Smith, Jr., Gilbert Alexander Crosby, Prosecuting Attorneys' Council Of Georgia, 1590 Adamson Parkway, 4th Floor, Morrow, Georgia 30260-1755, for Neutral Amicus.

Mark Patrick Higgins, Jr., A.D.A., Herbert McIntosh Poston, Jr., District Attorney, Conasauga Judicial Circuit District Attorney's Office, P.O. Box 1086, Dalton, Georgia 30722-1086, for Appellee.

Andrew Alan Pinson, Solicitor-General, Ross Warren Bergethon, Deputy Solicitor-General, Department of Law, 40 Capitol Square SW, Atlanta, Georgia 30334, for Other Party.

Colvin, Justice.

This Court has held that the right against compelled self-incrimination protected by Article I, Section I, Paragraph XVI of the Georgia Constitution of 1983 ("Paragraph XVI") prohibits the State from admitting into evidence both the results of a compelled state-administered breath test and a defendant's refusal to submit to a state-administered breath test. See Olevik v. State , 302 Ga. 228, 228-229, 246 (2) (c) (iv), 806 S.E.2d 505 (2017) ; Elliott v. State , 305 Ga. 179, 179-180, 223 (IV) (E), 824 S.E.2d 265 (2019). In the wake of this precedent, we granted certiorari to determine whether the scope of Paragraph XVI extends to another test sometimes administered in driving-under-the-influence cases, namely, a chemical test of urine. Under the reasoning of Olevik and Elliott , we hold that the right against compelled self-incrimination protected by Paragraph XVI prohibits the State from admitting into evidence a defendant's refusal to urinate into a collection container as directed by the State for purposes of providing a urine sample for chemical testing.

1. On November 13, 2018, a police officer found Omar Awad sleeping in the driver's seat of a vehicle that was stopped in the middle of an intersection. The officer arrested Awad, read him the relevant implied-consent notice,¹ and requested that he provide a urine sample in a collection container for chemical testing.² Awad refused.

The State charged Awad with driving under the influence in violation of OCGA § 40-6-391 (a) (2), improper stopping in violation of OCGA § 40-6-203 (a) (1) (C), and failure to wear a safety belt in violation of OCGA § 40-8-76.1. Before trial, Awad moved to suppress his refusal to submit to the urine test under Paragraph XVI. Relying on this Court's decision in Elliott , the trial court granted the motion. The State immediately appealed, see OCGA § 5-7-1 (a) (4), and the Court of Appeals reversed. See State v. Awad , 357 Ga. App. 255, 259, 850 S.E.2d 454 (2020). We granted Awad's petition for certiorari to determine whether the trial court erred in concluding that the State was not permitted to introduce into evidence Awad's refusal to provide a urine sample on the ground that admitting such evidence would violate his right against compelled self-incrimination provided by Paragraph XVI of the Georgia Constitution.

2. Paragraph XVI provides that "[n]o person shall be compelled to give testimony tending in any manner to be self-incriminating." Ga. Const. of 1983, Art. I, Sec. I, Par. XVI. Although the language of Paragraph XVI references only "testimony," we concluded in Olevik that the provision's "long history of interpretation" showed that its scope was not "limited to evidence of a testimonial or communicative nature." Olevik , 302 Ga. at 235 (2) (c), 806 S.E.2d 505. In addition to prohibiting the State from compelling a defendant to give self-incriminating testimony, we explained, " Paragraph XVI prohibits compelling a suspect to perform an act that itself generates incriminating evidence." Id. at 243 (2) (c) (iii), 806 S.E.2d 505.³

Applying this principle, Olevik held that " Paragraph XVI protects against compelled [deep lung] breath tests and affords individuals a constitutional right to refuse testing." Olevik , 302 Ga. at 252 (3) (b), 806 S.E.2d 505. This was so, we explained, because "for the State to be able to test an individual's breath for alcohol content, it is required that the defendant cooperate by performing an act ," namely, by blowing "strong[ly]," "deeply," and "unnaturally" for "several seconds in order to produce an adequate sample." Id. at 243-244 (2) (c) (iii), 806 S.E.2d 505 (emphasis in original). Although exhaling breath generally occurs "involuntarily and automatically," we noted, "[s]ustained strong blowing into a machine for several seconds requires a suspect to breathe unnaturally for the purpose of generating evidence against himself." Id. at 244 (2) (c) (iii), 806 S.E.2d 505. Accordingly, if the State compels a defendant to submit to a breath test, Paragraph XVI prohibits the State from admitting into evidence any incriminating test results.⁴ See id. at 252 (3) (b), 806 S.E.2d 505 (affirming the denial of a motion to suppress the defendant's breath-test results because, although Paragraph XVI protects against compelled breath tests, the State had not compelled the defendant to submit to the test).

Whereas Olevik addressed when a court should suppress compelled breath-test results, Elliott considered when a defendant's refusal to submit to such a test should be suppressed. See Olevik , 302 Ga. at 229, 806 S.E.2d 505 ; Elliott , 305 Ga. at 181 (I), 824 S.E.2d 265. Declining the State's invitation to overrule Olevik , we reaffirmed Olevik ’s holding that Paragraph XVI affords a defendant a right not to be compelled to submit to a state-administered breath test and a right to refuse such a test. See Elliott , 305 Ga. at 180, 209 (IV), 824 S.E.2d 265. We then reviewed the relevant history and case law leading up to and immediately following adoption of the self-incrimination provision in the 1877 Georgia Constitution to determine what consequences flowed from a defendant's assertion of the right to refuse breath testing. See id. at 209-210 (IV), 824 S.E.2d 265. Based on the historical record and decisional law, we concluded that the self-incrimination provision adopted in 1877 "prohibited admission of a defendant's refusal to speak or act as evidence against him," and that no subsequent developments altered the meaning of the self-incrimination provision that had been incorporated without material change into Paragraph XVI of the 1983 Constitution. Id. at 218-221 (IV) (C), (D), 824 S.E.2d 265. Accordingly, we held that " Paragraph XVI precludes admission of evidence that a suspect refused to consent to a breath test." Id. at 223 (IV) (E), 824 S.E.2d 265.

The State has the burden of proving that evidence challenged in a motion to suppress is admissible. See Kennebrew v. State , 304 Ga. 406, 409 (1), 819 S.E.2d 37 (2018) (holding that, on a motion to suppress evidence obtained from a warrantless search, the State has the burden of showing that an exception to the warrant requirement applies); State v. Hinton , 309 Ga. 457, 457, 847 S.E.2d 188 (2020) (noting that, on a motion to suppress a custodial statement, "[t]he State bears the burden of establishing by a preponderance of the evidence that a defendant's custodial statement was voluntary"); Melton v. State , 354 Ga. App. 828, 828, 830-831, 841 S.E.2d 481 (2020) (vacating the denial of a motion to suppress breath-test results and remanding for the trial court to determine whether the State had carried its burden of showing that the defendant had voluntarily consented to the breath test). Thus, as made clear in Olevik , the Georgia constitutional right against compelled self-incrimination requires a trial court to grant a motion to suppress incriminating results from a state-administered chemical test unless the State proves that (1) the defendant was not required to perform an act to generate the test sample, or (2) the defendant was not compelled to submit to the test. See Olevik , 302 Ga. at 243-244 (2) (c) (iii), 252 (3) (b), 806 S.E.2d 505. Under Elliott , whether Paragraph XVI requires a court to grant a motion to suppress a defendant's refusal to submit to a state-administered chemical test turns on whether the defendant would have been required to perform an act to generate the test sample. See Elliott , 305 Ga. at 179-180, 209 (IV), 223 (IV) (E), 824 S.E.2d 265. Unless the State proves that submitting to the state-administered chemical test would not have required the defendant to perform an act to generate the test sample, Paragraph XVI requires a court to grant a motion to suppress evidence that the defendant refused to submit to the test. See id. at 223 (IV) (E), 824 S.E.2d 265.

3. Under Olevik and Elliott , the right against compelled self-incrimination protected by Paragraph XVI prohibits the State from admitting into evidence a defendant's refusal to submit to a urine test when doing so would require a defendant to urinate into a collection container to generate a sample for chemical testing. This collection method necessarily requires a defendant to cooperate with the State by performing an act that generates self-incriminating evidence. Specifically, a defendant must urinate into a container, at the time and in the manner directed by the State, to ensure that the State can obtain a usable test sample for chemical analysis. Although urination, like breathing, is a natural bodily function, "the State is not merely collecting [urine] expelled in a natural manner" when it asks a defendant to produce an adequate amount...