Wagner v. State, A11A0895, Court of Appeals of Georgia, September 7, 2011. Wagner was convicted of DUI by a jury in Cobb County State Court by Judge Carl Bowers. On October 3, 2008, James D. Wagner was at a restaurant when his 4-year-old child ran outside in the parking lot and fell. Bystanders called the police worried that the child had been hurt and possibly hit by a passing vehicle. Wagner picked up his child and drove off. He later parked in a neighboring parking lot where he was approached by police. Wagner was allegedly disoriented, had red and glassy eyes and his breathing was labored. He refused an alcosensor test. He exbihited 6/6 clues on the HGN, 3/8 on the walk and turn, and 0/4 clues on the one-legged stand. He accurately recited the alphabet from E to X for the officer. Wagner was arrested for DUI less safe as he refused the state-administered test of his breath at the jail.
Wagner appealed alleging that Judge Bower erroneously instructed the jury by giving the charge: “the refusal itself may be considered as positive evidence, creating an inference that the test would show the presence of alcohol or other prohibited substances which impair his driving…” The Court of Appeals found the that phrase “…which impair his driving” had been disapproved in Baird v. State, 260 GA. App. 661 (2003). The incorrect jury instruction invaded the province of the jury and shifted the burden of proof on the defendant to rebut the inference. The State did not argue the charge was correct but simply that Wagner had waived his objection by not objecting specifically after the trial court had given the charge. Because the incorrect charge shifted the burden, it was plain error and not waived by the failure to specifically object to it at the trial court. The Court of Appeals held that generalized instructions concerning the burden of proof are insufficient to cover the mandatory nature of this specific instruction. Duelmer v. State, 265 Ga. App. 342 (2004). Because this was a substantial error the conviction was reversed.