GA: Defendant’s refusal to submit to a urine test wasn’t a 5A violation

Defendant’s refusal to submit to a urine test wasn’t a Fifth Amendment violation. Motion to suppress improperly granted. State v. Awad, 2020 Ga. App. LEXIS 589 (Oct. 20, 2020):

Awad contends that the trial court’s order should be upheld as right for any reason 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 SCt 1384, 103 LE2d 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 SCt 2473, 189 LE2d 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).

But the production of bodily fluid samples is not communicative or testimonial in nature and thus does not implicate a defendant’s privilege against self-incrimination under the Fifth Amendment. See Schmerber v. California, 384 U.S. 757, 765 (II) (86 SCt. 1826, 16 LE2d 908) (1966) (holding that a DUI suspect’s privilege against self-incrimination was not violated by the extraction of a blood sample without his consent); Hearn v. Bd. of Public Ed., 191 F3d 1329, 1333 (II) (11th Cir. 1999) (the production of urine is not testimonial in nature for purposes of the Fifth Amendment). Accordingly, Awad’s argument under the federal constitution provides no basis for affirming based on the right-for-any-reason rule.

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