Awad v. State
313 Ga. 99
Ga.2022Background
- On Nov. 13, 2018 police found Omar Awad asleep in the driver’s seat; he was arrested and read the implied-consent notice. The officer asked Awad to provide a urine sample in a collection container; Awad refused.
- Awad was charged with DUI and related offenses; he moved to suppress the State’s evidence of his refusal under Article I, Section I, Paragraph XVI of the Georgia Constitution.
- The trial court granted suppression relying on this Court’s breath-test decisions; the Court of Appeals reversed. The Supreme Court granted certiorari to resolve whether Paragraph XVI bars admission of refusal evidence for urine tests that require urinating into a collection container.
- The parties agreed that the collection method at issue would require Awad to urinate into a container (as opposed to catheterization).
- The Supreme Court held that Paragraph XVI prohibits admitting evidence of a defendant’s refusal to urinate into a collection container for chemical testing, reversed the Court of Appeals, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Paragraph XVI bars admission of a defendant’s refusal to provide a urine sample when the State would have required the defendant to urinate into a collection container. | Awad: Yes — requiring a person to urinate into a container is an affirmative act that generates self‑incriminating evidence and is protected. | State: No — urine is a naturally excreted substance (Green) and the implied‑consent statute does not specify collection method; some methods would not require an act. | Yes — when the State’s collection method would require the defendant to urinate into a container, Paragraph XVI protects the refusal and bars admission of refusal evidence. |
| Whether Green v. State forecloses protection because urine is a naturally excreted substance. | Awad: Green addressed compulsion and probation conditions, not whether producing urine by directed urination is an affirmative act; it does not control here. | State: Green held that using naturally excreted substances (urine) does not violate Paragraph XVI. | Green is limited: it applies where the defendant was not compelled to perform an act; it does not control when the State requires directed urination into a container. |
| Whether the State can evade Paragraph XVI by pointing to multiple possible collection methods (some not requiring an act). | Awad: The State bears the burden to prove the refused collection method would not require an act; ambiguous evidence fails. | State: Because statute does not specify collection method, refusal evidence may be admissible if some methods wouldn’t require an act (e.g., catheterization). | The State must prove by a preponderance the collection method the defendant refused would not have required an act; speculative or mixed-method proof is insufficient. |
Key Cases Cited
- Olevik v. State, 302 Ga. 228 (establishing Paragraph XVI bars compelled breath tests and protects against compelled acts that generate evidence)
- Elliott v. State, 305 Ga. 179 (reaffirming Olevik and holding Paragraph XVI precludes admission of a suspect’s refusal to submit to a breath test)
- Green v. State, 260 Ga. 625 (holding use of a naturally excreted substance does not violate Paragraph XVI where the defendant was not compelled; limited to compulsion context)
- Quarterman v. State, 282 Ga. 383 (distinguishing DNA/blood sampling from tests that require an affirmative act by the suspect)
- Robinson v. State, 180 Ga. App. 43 (examining urine collection under a warrant and whether production was forced; relied on in Green)