Hillery v. State

Court of Appeals of Georgia

Hillery v. State

299 S.E.2d 421, 165 Ga. App. 127, 1983 Ga. App. LEXIS 3118

CourtCourt of Appeals of Georgia

DecidedJanuary 14, 1983

Docket64912

StatusPublished

Cited by2 cases

This text of 299 S.E.2d 421 (Hillery v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hillery v. State, 299 S.E.2d 421, 165 Ga. App. 127, 1983 Ga. App. LEXIS 3118 (Ga. Ct. App. 1983).

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Opinion

Shulman, Chief Judge.

A jury convicted appellant of driving under the influence (Code Ann. § 68A-902 (a) (OCGA § 40-6-391)); obstruction of a police officer (Code Ann. § 26-2505 (OCGA § 16-10-24)); and attempting to elude police (Code Ann. § 68A-904 (a) (OCGA § 40-6-395 (a)). He was sentenced to three concurrent 12-month sentences. In his sole enumeration of error, appellant contends that a portion of the trial court’s charge to the jury impermissibly shifted the burden of proof to appellant. See Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39). We disagree with appellant’s assertion.

The jury instruction at issue contained the substance of Code Ann. § 68A-902.1 (b) (3) (OCGA § 40-6-392 (b) (3)), that a legal presumption of intoxication existed if the jury found that a blood, urine, or chemical analysis test showed that appellant’s blood contained .10 percent alcohol. Immediately after giving this charge, the trial court instructed the jury that such a test created a rebuttable presumption and that “[t]he burden is on the State to prove to a moral and reasonable certainty and beyond a reasonable doubt that the defendant was under the influence of some intoxicating beverages ...”

“The charges given [the] jury on this subject, taken together, created merely a permissive presumption of the type considered in County Court of Ulster County v. Allen, 442 U. S. 140 (99 SC 2213, 60 LE2d 777) (1979). Such a presumption ‘allows — but does not require — the trier of fact to infer the elemental [element of the crime] fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant.’ Id., 60 LE2d 777.” Skrine v. State, 244 Ga. 520, 521 (260 SE2d 900). Appellant’s enumeration is without merit.

Judgment affirmed.

Quillian, P. J., and Carley, J., concur.

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Shulman, Chief Judge.

A jury convicted appellant of driving under the influence (Code Ann. § 68A-902 (a) (OCGA § 40-6-391)); obstruction of a police officer (Code Ann. § 26-2505 (OCGA § 16-10-24)); and attempting to elude police (Code Ann. § 68A-904 (a) (OCGA § 40-6-395 (a)). He was sentenced to three concurrent 12-month sentences. In his sole enumeration of error, appellant contends that a portion of the trial court’s charge to the jury impermissibly shifted the burden of proof to appellant. See Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39). We disagree with appellant’s assertion.

The jury instruction at issue contained the substance of Code Ann. § 68A-902.1 (b) (3) (OCGA § 40-6-392 (b) (3)), that a legal presumption of intoxication existed if the jury found that a blood, urine, or chemical analysis test showed that appellant’s blood contained .10 percent alcohol. Immediately after giving this charge, the trial court instructed the jury that such a test created a rebuttable presumption and that “[t]he burden is on the State to prove to a moral and reasonable certainty and beyond a reasonable doubt that the defendant was under the influence of some intoxicating beverages ...”

“The charges given [the] jury on this subject, taken together, created merely a permissive presumption of the type considered in County Court of Ulster County v. Allen, 442 U. S. 140 (99 SC 2213, 60 LE2d 777) (1979). Such a presumption ‘allows — but does not require — the trier of fact to infer the elemental [element of the crime] fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant.’ Id., 60 LE2d 777.” Skrine v. State, 244 Ga. 520, 521 (260 SE2d 900). Appellant’s enumeration is without merit.

Judgment affirmed.

Quillian, P. J., and Carley, J., concur.

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299 S.E.2d 421, 165 Ga. App. 127, 1983 Ga. App. LEXIS 3118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hillery-v-state-gactapp-1983.

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