Stewart v. State

Court of Appeals of Georgia

Stewart v. State

335 S.E.2d 603, 176 Ga. App. 148, 1985 Ga. App. LEXIS 2220

CourtCourt of Appeals of Georgia

DecidedSeptember 3, 1985

Docket70524

StatusPublished

Cited by8 cases

This text of 335 S.E.2d 603 (Stewart 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

Stewart v. State, 335 S.E.2d 603, 176 Ga. App. 148, 1985 Ga. App. LEXIS 2220 (Ga. Ct. App. 1985).

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Opinions

Deen, Presiding Judge.

The appellant, Thomas David Stewart, was convicted of driving under the influence of alcohol, for which he was sentenced to 12 months’ probation, a $600 fine, and 80 hours of community service. On appeal, he contends that portions of the trial court’s instruction to the jury were burden-shifting and confusing.

At approximately 1:37 a.m. on July 18, 1984, after observing the appellant’s vehicle fail to negotiate a curve properly, a police officer for the City of Athens stopped the appellant and conducted a field sobriety test. The appellant failed the test, after which the police officer read him his implied consent warning and placed him under arrest. Slightly less than an hour later, an auto-intoximeter test revealed a breath-alcohol level of 0.15 grams percent. The appellant admitted having had several drinks that night, and even that he had a drink with him in a “go” cup at the time he was stopped by the police officer, but he denied being intoxicated. Held:

The appellant contends that the trial court erred in failing to instruct the jury that the presumptions of OCGA § 40-6-392 were rebuttable. It is well settled that where the accusation and evidence invoke the presumptions contained in OCGA § 40-6-392, in order to avoid a burden-shifting charge a trial court must inform the jury that the presumptions are rebuttable; and this court has clearly expressed its preference for the language contained in McCann v. State, 167 Ga. App. 368 (306 SE2d 681) (1983), concerning the rebuttal and operation of these statutory presumptions. Olsen v. State, 168 Ga. App. 296 (308 SE2d 703) (1983); Clark v. State, 169 Ga. App. 535 (313 SE2d 748) (1984).

However, in the instant case, the state accused the appellant of having driven a vehicle with a blood alcohol content of 0.12 percent or more in violation of OCGA § 40-6-391, and sought to prove that spe[149]*149cific violation; the state’s case did not involve or invoke any of the presumptions available under OCGA § 40-6-392. Lester v. State, 253 Ga. 235 (320 SE2d 142) (1984). The trial court referred to the OCGA § 40-6-392 presumptions in its charge to the jury, but also clearly stated that under the state’s accusation against the appellant, those presumptions did not apply. Accordingly, no explanation about the rebuttal of presumptions was necessary. Additionally, there was nothing confusing about the trial court’s explanation that the presumptions did not apply and that the jury would be obligated to convict the appellant if it found that he had operated a vehicle with a blood alcohol content of 0.12 percent or more.

Decided September 3, 1985 Rehearing denied September 24, 1985 Jerry L. Steering, for appellant. Ken Stula, Solicitor, for appellee.

Judgment affirmed.

Pope and Beasley, JJ., concur. Pope and Beasley, JJ., also concur specially.

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Deen, Presiding Judge.

The appellant, Thomas David Stewart, was convicted of driving under the influence of alcohol, for which he was sentenced to 12 months’ probation, a $600 fine, and 80 hours of community service. On appeal, he contends that portions of the trial court’s instruction to the jury were burden-shifting and confusing.

At approximately 1:37 a.m. on July 18, 1984, after observing the appellant’s vehicle fail to negotiate a curve properly, a police officer for the City of Athens stopped the appellant and conducted a field sobriety test. The appellant failed the test, after which the police officer read him his implied consent warning and placed him under arrest. Slightly less than an hour later, an auto-intoximeter test revealed a breath-alcohol level of 0.15 grams percent. The appellant admitted having had several drinks that night, and even that he had a drink with him in a “go” cup at the time he was stopped by the police officer, but he denied being intoxicated. Held:

The appellant contends that the trial court erred in failing to instruct the jury that the presumptions of OCGA § 40-6-392 were rebuttable. It is well settled that where the accusation and evidence invoke the presumptions contained in OCGA § 40-6-392, in order to avoid a burden-shifting charge a trial court must inform the jury that the presumptions are rebuttable; and this court has clearly expressed its preference for the language contained in McCann v. State, 167 Ga. App. 368 (306 SE2d 681) (1983), concerning the rebuttal and operation of these statutory presumptions. Olsen v. State, 168 Ga. App. 296 (308 SE2d 703) (1983); Clark v. State, 169 Ga. App. 535 (313 SE2d 748) (1984).

However, in the instant case, the state accused the appellant of having driven a vehicle with a blood alcohol content of 0.12 percent or more in violation of OCGA § 40-6-391, and sought to prove that spe[149]*149cific violation; the state’s case did not involve or invoke any of the presumptions available under OCGA § 40-6-392. Lester v. State, 253 Ga. 235 (320 SE2d 142) (1984). The trial court referred to the OCGA § 40-6-392 presumptions in its charge to the jury, but also clearly stated that under the state’s accusation against the appellant, those presumptions did not apply. Accordingly, no explanation about the rebuttal of presumptions was necessary. Additionally, there was nothing confusing about the trial court’s explanation that the presumptions did not apply and that the jury would be obligated to convict the appellant if it found that he had operated a vehicle with a blood alcohol content of 0.12 percent or more.

Decided September 3, 1985 Rehearing denied September 24, 1985 Jerry L. Steering, for appellant. Ken Stula, Solicitor, for appellee.

Judgment affirmed.

Pope and Beasley, JJ., concur. Pope and Beasley, JJ., also concur specially.

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Bluebook (online)

335 S.E.2d 603, 176 Ga. App. 148, 1985 Ga. App. LEXIS 2220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-state-gactapp-1985.

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