State v. Awad

357 Ga.App. 255

850 S.E.2d 454

The STATE

v.AWAD.

A20A1490

Court of Appeals of Georgia.

October 20, 2020

Herbert M. Poston, Jr., District Attorney, Mark P. Higgins, Jr., Assistant District Attorney, for appellant.

The Sessions Law Firm, D. Benjamin Sessions, for appellee.

Rickman, Judge.

Based on limited stipulated facts, the trial court granted Omar Jamal Awad's motion to suppress evidence that he refused to submit to a urine test in this DUI case. The State appeals the trial court's order and argues that the trial court misapplied the relevant law. Because the trial court failed to follow controlling authority from the Supreme Court of Georgia, and because Awad's alternative argument lacks merit, we reverse.

The record shows that Awad was arrested and charged with driving under the influence of drugs ( OCGA § 40-6-391 (a) (2) ), improper stopping ( OCGA § 40-6-203 (a) (1) (C) ), and failure to wear a safety belt ( OCGA § 40-8-76.1 ). Awad waived arraignment and pled not guilty. On the morning of trial, Awad moved to suppress evidence of his refusal to submit to a urine test. No evidence was presented at the hearing. Rather, the parties agreed to stipulate that the officer read an implied consent warning¹ and, post-arrest, requested that Awad submit to a urine test, which Awad refused.

At the hearing, Awad argued that allowing his refusal to perform the test to be introduced into evidence would constitute a violation of Ga. Const. of 1983, Art. I, Sec. I, Par. XVI ("Paragraph XVI"), which provides: "No person shall be compelled to give testimony tending in any manner to be self-incriminating." He also argued that evidence of his refusal is protected by the federal Constitution.

At the conclusion of the hearing, the court announced that it was granting the motion to suppress on the sole ground that allowing the State to introduce evidence of Awad's refusal to submit to a urine test would violate the Georgia Constitution:

I believe I've got to grant the defendant's motion to exclude evidence of the refusal of the defendant to produce any form of sample, whether it's blood, breath, or urine -- in this case, urine – under the theory that that would violate his privilege against self-incrimination that's guaranteed by the Georgia Constitution, not the Fourth Amendment of the United States Constitution.

On appeal, the State contends that the trial court erred in granting Awad's motion to suppress evidence of his refusal under Georgia's implied consent law. We agree.

"[T]he trial court's application of the law to undisputed facts is subject to de novo review." (Citations and punctuation omitted.) State v. Clay , 339 Ga. App. 473, 473, 793 S.E.2d 636 (2016).

1. Two Georgia statutes allow the refusal to submit to a urine test as admissible evidence:

In any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest shall be admissible in evidence against him.

OCGA § 40-6-392 (d) ; see also OCGA § 40-5-67.1 (b). Compare Elliott v. State , 305 Ga. 179, 223 (IV) (E), 824 S.E.2d 265 (2019) (" OCGA §§ 40-5-67.1 (b) and 40-6-392 (d) are unconstitutional to the extent that they allow a defendant's refusal to submit to a breath test to be admitted into evidence at a criminal trial."). Whether these statutes are unconstitutional with regard to urine tests is not before us. As held by the Supreme Court when transferring this case to this Court, "the trial court provided no express ruling on the constitutionality of OCGA §§ 40-5-67.1 (b) and 40-6-392 (d)." Accordingly, the two statutes govern the admissibility of Awad's refusal to submit to a urine test.

Further, although the Georgia Constitution provides broader protection against self-incrimination than the federal Constitution, the Supreme Court of Georgia has established that use of a suspect's urine sample does not violate the suspect's right against self-incrimination under Paragraph XVI. See Green v. State , 260 Ga. 625, 626 (2), 398 S.E.2d 360 (1990) ; see also Robinson v. State , 180 Ga. App. 43, 50-51 (3), 348 S.E.2d 662 (1986), reversed on other grounds by Robinson v. State , 256 Ga. 564, 350 S.E.2d 464 (1986) (holding that "procurement" of a suspect's urine did not violate his right because there was no evidence that he was forced to produce the urine sample). Because submitting to or using the results of a urine test does not implicate a person's right against compelled self-incrimination, Paragraph XVI does not preclude admission of evidence that a suspect refused to consent to a urine test.

The holding in Green was not impacted by two recent decisions of the Supreme Court of Georgia. See Elliott , 305 Ga. at 205 (III) (C) (i), 824 S.E.2d 265 ; Olevik v. State , 302 Ga. 228, 244-245 (2) (c) (iii), n.10, 806 S.E.2d 505 (2017) (although stating that the court was not considering whether Green was rightly decided).And even though Olevik held that "submitting to a breath test implicates a person's right against compelled self-incrimination under the Georgia Constitution," and that "Georgians do have a constitutional right to refuse to consent to warrantless blood tests, absent some other exception to the warrant requirement," see Olevik , 302 Ga. at 229, 233, 806 S.E.2d 505, the same court made clear that the holdings of Olevik and Elliott are limited to chemical tests of a driver's breath. See Elliott , 305 Ga. at 223 (IV) (E), n.30, 824 S.E.2d 265 ; Olevik , 302 Ga. at 232 (2) (a), n.2, 806 S.E.2d 505.; see also Elliott , 305 Ga. at 224, 824 S.E.2d 265 (Boggs, J., concurring). Thus, this Court is bound by the ruling in Green . See Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI ("The decisions of the Supreme Court shall bind all other courts as precedents.").

Moreover, even if we were to attempt to apply Olevik's analysis — of whether compelling a suspect to submit to a breath test violated Paragraph XVI's right against self-incrimination — to this urine-test case, we could not proceed because, as the Supreme Court explained in Olevik , the analysis "depends on the details of the test." Olevik , 302 Ga. at 243 (2) (c) (iii), 806 S.E.2d 505. And here, no details were presented below regarding the proposed urine test.

Accordingly, the trial court erred by concluding that refusing to submit to a urine test was inadmissible under the theory that it would violate Awad's privilege against self-incrimination under Paragraph XVI of the Georgia Constitution.

2. Awad contends that the trial court's order should be upheld as right for any reason² because allowing evidence of his refusal to submit to a urine test would violate his rights under the federal Constitution. He argues that a urine test is a search under the Fourth Amendment and that using a refusal to submit to such a search as evidence of guilt would violate his right against self-incrimination under the Fifth Amendment.

The Fourth Amendment to the United States Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Urine tests are searches under the Fourth Amendment; therefore, they must be conducted in a constitutionally reasonable manner. See Nat. Treasury Employees Union v. Von Raab , 489 U. S. 656, 665 (II), 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). Without a warrant or an exception to the warrant requirement, such a search is unreasonable. Riley v. California , 573 U. S. 373, 381-382 (II), 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). Exceptions to the rule include searches incident to arrest and searches based on exigent circumstances. See generally id. at 382-383 (II), 388 (III) (A) (1),...