Awad v. The State

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 SE2d 505) (2017); Elliott v. State, 305 Ga. 179, 179-180, 223 (IV) (E) (824 SE2d 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 SE2d 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). 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).^[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). 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) (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). 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) (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; Elliott, 305 Ga. at 181 (I). Declining the State’s invitation to overrule Olevik, we reaffirmed Oleviks 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). 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). 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). 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). 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 SE2d 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 SE2d 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 SE2d 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). 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). 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). 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 of urine in a collection container at a specific time. Olevik, 302 Ga. 244 (2) (c) (iii). Instead, the State is asking the defendant to affirmatively give the State evidence from the defendant’s body in a particular manner that is neither natural nor automatic. Accordingly, under Olevik and Elliott, Paragraph XVI affords a defendant a right to refuse to submit to such a test and a right to suppress evidence of the defendant’s refusal. See Olevik, 302 Ga. at 243-244 (2) (c) (iii); Elliott, 305 Ga. at 179-180, 209 (IV), 223 (IV) (E). Here, because Awad had a right to refuse the State’s request that he provide a urine sample in a collection container, the trial court properly granted his motion to suppress evidence of his refusal to submit to the test.^[5] 4. Challenging this conclusion, the State argues that our decision in Green v. State, 260 Ga. 625 (398 SE2d 360) (1990) – a case involving a probationer – established that the State’s obtaining a urine sample does not implicate the right against compelled self- incrimination because providing a urine sample does not require an act on the part of the defendant. A careful reading of Green, however, shows that our decision turned on whether the probationer was compelled to provide a urine sample, not whether he had performed an act in producing the urine sample. Thus, Green is not inconsistent with our conclusion in Division 3. In Green, we rejected the probationer’s argument that the State’s use of his urine sample as evidence against him had violated his Paragraph XVI right against compelled self-incrimination. See Green, 260 Ga. at 626-627 (2). We noted that the probationer had been required to provide a urine sample “as a condition of his probation” and quoted that condition as stating that the “[p]robationer shall, from time to time upon oral or written request by any . . . state law enforcement officer, produce a . . . urine . . . specimen for [chemical] analysis.” Id. at 625 & n.1. Then, after noting the general rule that “[y]ou cannot force a defendant to act, but you can, under proper circumstances, produce evidence from his person,” id. at 627 (2) (punctuation omitted; emphasis supplied), we held as follows: We adopt, with some modification, the holding of the Court of Appeals in Robinson v. State, 180 Ga. App. 43 (3) (348 SE2d 662) (1986), reversed on other grounds, 256 Ga. 564 (350 SE2d 464) (1986): the use of a substance naturally excreted by the human body does not violate a defendant’s right against self-incrimination under the Georgia Constitution. Thus, the use of appellant’s urine sample did not violate appellant’s constitutionally- protected right against self-incrimination. Id. (emphasis supplied; punctuation omitted). In the cited portion of Robinson, the Court of Appeals had affirmed a trial court’s denial of a motion to suppress results from a urine test obtained pursuant to a search warrant. See Robinson, 180 Ga. App. at 50-51 (3). Robinson reasoned that “[t]here [wa]s nothing in the record to show that appellant was forced to produce a urine sample,” and “the procurement of substances which are naturally produced by the body does not violate a defendant’s right against self-incrimination under the Constitution of Georgia.” Id. (emphasis supplied). Standing alone, Greens statement that “the use of a substance naturally excreted by the human body does not violate a defendant’s right against self-incrimination” might be read as a holding either that a person need not perform an act to provide a urine sample because urination is a natural bodily function or that the use of urine which has been naturally produced without compulsion does not implicate Paragraph XVI. Green, 260 Ga. at 627 (2). In context, however, we conclude that only the latter interpretation is consistent with the opinion as a whole. We must consider the factual context of Green and the authority on which it relied to understand the scope and nature of its holding. See Undisclosed LLC v. State, 302 Ga. 418, 433 (4) (b) (807 SE2d 393) (2017). Three features of Green inform our interpretation of the decision. First, Green did not identify the method used to collect the probationer’s urine, much less purport to analyze whether the collection method required an act on the part of the defendant. See Olevik, 302 Ga. at 243 (2) (c) (iii) (noting that determining whether a defendant must perform an act to generate evidence “depends on the details of the [particular] test”). Second, Green relied heavily on Robinson – a case concerning whether force had been used when a defendant submitted to the execution of a search warrant and in doing so provided a urine sample. See Green, 260 Ga. at 627 (2); Robinson, 180 Ga. App. at 50-51 (3). Finally, Green emphasized that providing urine samples was a condition of the probationer’s probation and noted that the probationer had abided by that condition. See Green, 260 Ga. at 625 & n.1. Green did not state that the probationer was compelled to provide a urine sample, and we will not infer such compulsion from Green’s silence. See Green, 260 Ga. at 625, 627 (2); see also Olevik, 302 Ga. at 252 (3) (b) (noting that a defendant’s right against compelled self-incrimination is not violated if the defendant voluntarily submits to a state-administered test without being compelled to do so).^[6] Indeed, probation conditions like the one discussed in Green are sometimes the result of consensual plea bargains or waivers of constitutional rights. See Fox v. State, 272 Ga. 163, 164 (1) (527 SE2d 847) (2000).^[7] In context, then, Green held that “the use of a substance naturally excreted by the human body [such as urine] does not violate a defendant’s right against self-incrimination” unless the defendant was compelled to perform an act to produce the substance. Green, 260 Ga. at 627 (2); see also Olevik, 302 Ga. at 243-244 (2) (c) (iii) (explaining Green and Robinson in terms of merely “collecting” a urine sample and “procurement” of a urine sample without “force[]“); Kehinde v. State, 236 Ga. App. 400, 400 (512 SE2d 311) (1999) (describing Green as involving “submit[ting] to the collection of [a urine sample] from [the probationer's] person”), disapproved of on other grounds by State v. Turnquest, 305 Ga. 758 (827 SE2d 865) (2019). Because Green did not address whether a defendant must perform an act to produce a urine sample for chemical testing, but instead confined its analysis to Paragraph XVI’s compulsion element, its holding does not control whether urinating into a collection container at a time and in a manner directed by the State for purposes of chemical testing constitutes an affirmative act under Olevik and Elliott. Properly understood, then, Green does not conflict with our conclusion in Division 3 that the urine test that Awad refused would have involved performing an affirmative act to generate self-incriminating evidence.^[8] 5. We hold that, under Olevik, the right against compelled self-incrimination protected by Paragraph XVI affords a defendant the right to refuse to give the State a urine sample in a collection container, as directed by the State, for purposes of chemical testing. We further hold that, under Elliott, the State may not admit in a criminal trial evidence that the defendant refused to submit to such a test. Having concluded that the trial court properly suppressed evidence of Awad’s refusal to submit to a urine test, we reverse the Court of Appeals’ decision to the contrary, Awad, 357 Ga. App. at 259, and remand for further proceedings consistent with this opinion. Judgment reversed and case remanded. All the Justices concur. S21G0370. Awad v. The State. Colvin, Justice, concurring. In the majority opinion, I have faithfully applied this Court’s recent precedent interpreting Georgia’s constitutional right against compelled self-incrimination because the State argued only that its position was consistent with that precedent and not that the Court should reconsider it. See Olevik v. State, 302 Ga. 228 (806 SE2d 505) (2017); Elliott v. State, 305 Ga. 179 (824 SE2d 265) (2019). The State is wrong as the logic underlying the above precedent compels the conclusion reached in today’s majority opinion. While I have grave concerns about the interpretation of our Constitution in Olevik and Elliott, that issue is not squarely before the Court today.