Awad v. State – Georgia Supreme Court: DUI Urine Test Refusal

The Supreme Court has determined that a DUI defendant’s refusal to provide a urine sample may not be admitted into evidence by State prosecutors during a criminal trial because it would violate that defendant’s right against compelled self-incrimination under the Georgia Constitution. The underlying case stems from the November 2018 arrest of Omar Awad, whom a police officer found sleeping in the driver’s seat of a vehicle that was stopped in the middle of an intersection. Following his arrest, Awad refused to provide a urine sample for chemical testing. He was later charged with driving under the influence and other traffic offenses. Before trial, Awad moved to suppress his refusal to submit to the urine test, and the Whitfield County trial court granted his motion. The State, represented by the Conasauga Judicial Circuit District Attorney’s Office, appealed, and the Court of Appeals reversed the trial court’s ruling. In the opinion issued today, the Supreme Court has reversed the Court of Appeals, held that our client’s urine test refusal was not admissible against him, and has sent the case back to the trial court for further proceedings.

Our Supreme Court continues to make clear that the constitutional rights and principles generally applicable to criminal defendants are to be applied to DUI cases. This case illustrates the importance of having a lawyer that understands how to effectively litigate DUI motions.

Here is the link to the opinion – Awad v. State – GA Supreme Court – s21g0370.

The unanimous opinion, written by Justice Verda M. Colvin, notes that while the language prohibiting compelled self-incrimination found in Paragraph XVI of Article I, Section I of the Georgia Constitution references only “testimony,” the Court has concluded in previous cases that the provision also prohibits the State from compelling a defendant to perform an act that would generate incriminating evidence. In its 2017 opinion in Olevik v. State, the Court held that individuals have the right to refuse state-administered breath tests—the kinds that require unnatural and sustained deep lung exhalation. And in its 2019 opinion in Elliott v. State, the Court held that the State Constitution prohibits admission of evidence that a suspect refused to consent to a breath test. Because the particular method of collecting urine from the suspect would have required him to produce evidence from his body in a manner directed by the State that was neither natural nor automatic, the Court held in this case that the State is prohibited under the constitutional provision from admitting into evidence Awad’s refusal to submit to a urine test. “[B]ecause 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,” Justice Colvin wrote.

Writing only for herself, Justice Colvin added a short concurring opinion expressing her “grave concerns” about the Court’s interpretation of the Georgia Constitution in the previous cases, Olevik and Elliott, while acknowledging that the issue “is not squarely before the Court today.”

Attorney for Appellant (Awad): D. Benjamin Sessions

Attorneys for Appellees (State): Bert Poston, Conasauga Judicial Circuit District Attorney, Mark P. Higgins, Jr. Asst. D.A.

Awad – GA Supreme Court – Urine Refusal Summary

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