313 Ga. 99 FINAL COPY
S21G0370. 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
1 Although the record does not contain the language of the implied- consent notice that the officer read to Awad, the State proffered at the motion- to-suppress hearing that the officer read Awad “the appropriate implied consent warning.” At the time of Awad’s arrest, the implied-consent-notice statute required an officer to read the following language to a person like Awad, who was over the age of 21: Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?
2 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
(2) (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
OCGA § 40-5-67.1 (b) (2) (2016). 2 Although it was stipulated below that the police officer asked Awad to
submit to a urine test, the record did not reveal the details of how Awad’s urine would have been collected. At oral argument before this Court, however, the State conceded, and Awad agreed, that the collection method at issue here would have involved Awad urinating into a container, rather than some alternative method, such as catheterization. 3 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
3 However, Paragraph XVI “does not prohibit compelling a suspect to be
present so that another person may perform an act generating such evidence.” Olevik, 302 Ga. at 243 (2) (c) (iii). Nor does it prevent “a suspect [from] consent[ing] to take actions that Paragraph XVI would prevent the State from compelling.” Id. 4 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-
4 “[W]hether a defendant is compelled to provide self-incriminating evidence in violation of Paragraph XVI is determined under the totality of the circumstances” in the same manner as a court determines whether a defendant has voluntarily consented for purposes of constitutional due process. Olevik, 302 Ga. at 251 (3) (b) (emphasis supplied). 5 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 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). 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
6 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
7 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).
8 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
9 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
5 The State compares the urine test at issue here to other tests involving
natural bodily substances, such as DNA or blood, which we have held do not implicate the right against compelled self-incrimination. However, unlike a urine test that requires a defendant to intentionally produce urine in a particular manner suitable for chemical analysis, obtaining a DNA or blood sample generally does not require a defendant to affirmatively produce evidence from himself. See Quarterman v. State, 282 Ga. 383, 386 (4) (651 SE2d 32) (2007) (holding that a statute requiring incarcerated felons to provide a DNA sample “does not force a convicted felon to remove incriminating evidence but only to submit his or her body for the purpose of having the evidence removed”); Strong v. State, 231 Ga. 514, 514, 518-519 (202 SE2d 428) (1973) (holding that taking blood from an unconscious defendant did not violate the right against compelled self-incrimination because the defendant was not “forced to remove the incriminating blood” from himself), overruled in part on other grounds by Williams v. State, 296 Ga. 817 (771 SE2d 373) (2015). For the same reason, the urine test at issue here is not analogous to other cases the State cites in which a defendant was only required to be present for the State to collect evidence. See, e.g., Creamer v. State, 229 Ga. 511, 515, 517-518 (3) (192 SE2d 350) (1972) (concluding that the removal of a bullet from the defendant’s body did not violate his right against compelled self- incrimination). 10 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
11 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) (citation and 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). 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
[was] 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).
12 Standing alone, Green’s 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
13 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 id. 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
6 The State does not contend that Awad consented to urine tests.
14 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[
]”) (citation and punctuation omitted); Kehinde v. State, 236 Ga. App.
400, 401 (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
7 We note that probation conditions authorizing searches do not always
constitute valid waivers of Fourth Amendment rights. See Fox, 272 Ga. at 164- 165 (1) (holding that the defendant had not validly waived his Fourth Amendment rights where he first learned that a waiver of those rights was a condition of his probation outside the presence of the court or his attorney after being sentenced).
15 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
8 The State argues that, even if compelling a defendant to urinate into a
container requires a defendant to perform an act to generate self-incriminating evidence in violation of Paragraph XVI, commenting on a defendant’s refusal to submit to testing does not necessarily implicate the defendant’s rights under Paragraph XVI. This is so, the State contends, because neither Georgia’s implied-consent-notice statute nor any other state statute designates a specific form of collection, and some collection methods, such as catheterization, would not require the defendant to perform an act. Setting aside the parties’ agreement here that the officer asked Awad to provide a urine sample in a collection container, it is difficult to see how this argument helps the State because a defendant who refuses to provide a urine sample before an officer has specified a particular collection method has refused to comply with any collection method. Because, as discussed in Division 2, the State has the burden of establishing that evidence of the defendant’s refusal is admissible, it must show that the collection method that the defendant refused would not have required him to perform an act to generate self-incriminating evidence. Evidence that the defendant’s refusal concerned several collection methods, some of which implicate his rights under Paragraph XVI and some of which do not, fails to carry that burden. 16 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.
COLVIN, Justice, concurring.
In the majority opinion, I have faithfully applied this Court’s
recent precedent interpreting Georgia’s constitutional right against
17 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.
Decided January 19, 2022.
Certiorari to the Court of Appeals of Georgia — 357 Ga. App.
255.
D. Benjamin Sessions, for appellant.
Herbert M. Poston, Jr., District Attorney, Mark P. Higgins, Jr.,
Assistant District Attorney, for appellee.
Kimberly A. Dymecki, Greg A. Willis, Hunter J. Rodgers,
Omeeka P. Loggins, Solicitor-General, Robert W. Smith, Jr., Gilbert
A. Crosby, amici curiae.