Olsen v. State , 168 Ga. App. 296 ( 1983 )

168 Ga. App. 296 (1983) 308 S.E.2d 703

OLSEN
v.
THE STATE.

66752.

Court of Appeals of Georgia.

Decided October 4, 1983.

Howard T. Scott, for appellant.

Ken Stula, Solicitor, for appellee.

BIRDSONG, Judge.

Appellant was tried and convicted of driving under the influence. He enumerates three errors on appeal. Held:

1. Despite appellant's persuasive argument to the contrary, we do not agree that the presumptions created by OCGA § 40-6-392 (Code Ann. § 68A-902.1) constitute a denial of due process and equal protection by being burden shifting where those "presumptions" are modified in the charge to the jury as, in reality, being only "rebuttable presumptions or inferences." See McCann v. State, 167 Ga. App. 638 (306 SE2d 681) (1983).

2. For the same reasons stated in Division 1, we also reject appellant's contention in his second enumeration, which challenges the trial court's charge on the presumptions delineated in OCGA § 40-6-392 (Code Ann. § 68A-902.1) Id. Although the charge in this case noted that the presumptions were rebuttable and does pass constitutional muster, we believe that the charge quoted in McCann, supra (2), when used in connection with the instructions on the statutory presumptions, provides the jury with a clearer understanding of the legal impact of presumptions. The quoted portion of the McCann charge should always be given by trial courts when instructing on OCGA § 40-6-392 (Code Ann. § 68A-902.1).

3. We have reviewed the remainder of the trial court's opening and closing instructions to the jury and find no reversible error therein.

Judgment affirmed. Shulman, C. J., and McMurray, P. J., concur.