Wagner v. State

The trial court erred in instructing the jury that the defendant's refusal to submit to a state-administered breath test created a rebuttable inference that the test would show the presence of alcohol or other prohibited substances which impair his driving, and, although the defendant did not object to this previously-disapproved instruction at trial, a substantial error in the jury charge affecting the burden of proof constitutes plain error and is not waived on appeal.

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A jury convicted James D. Wagner of driving under the influence of alcohol to the extent it was less safe for him to drive “DUILess Safe” and of child endangerment for driving with a child in the car while under the influence of alcohol “DUIChild Endangerment”. The trial court subsequently denied his motion for a new trial. On appeal, Wagner contends that the trial court committed reversible error by instructing the jury that it could infer, from his refusal to take a State-administered breath test, that the test would have shown the presence of alcohol “which impaired his driving.” While Wagner did not specifically object to the instruction at the conclusion of the jury charge, we conclude that the instruction constituted plain error. Therefore, we must reverse his convictions and remand for a new trial. Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to the jury’s verdict. Vadde v. State , 296 Ga. App. 405 674 SE2d 323 2009. So viewed, the evidence showed that on the evening of October 3, 2008, a customer was in her car waiting in the drive-through lane of a fast food restaurant in Cobb County. While waiting, she saw a four-year-old child run from the restaurant into the parking lot. The customer was concerned that the child might get struck by a vehicle. Another customer who saw the child running in the parking lot let out a “blood-curdling scream.” At that point, the child stopped just as a car was nearing him and fell backward. The customer in the drive-through lane was unsure whether the child had been hit by the car or simply fell down.

After the child fell backward, the customer observed Wagner exit from the restaurant, pick up the child, and put the child into his vehicle. The manager of the restaurant followed Wagner outside and tried to get him to stop so that he could make sure the child was okay. However, after placing the child into his vehicle, Wagner drove away.

Wagner v. State

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