Simon v. State

Pope, Judge,

concurring specially.

Although I agree with the majority that defendant’s conviction on Count 1 of the indictment must be reversed, I am compelled by what I perceive as continuing uncertainty concerning what constitutes a proper charge in a case prosecuted under OCGA § 40-6-391 (a) (1) to attempt to clarify the reasoning which I think dictates the majority’s result.

*213Prior to our holding in Peters v. State, 175 Ga. App. 463 (2) (333 SE2d 436) (1985), overruled on other grounds, Hogan v. State, 178 Ga. App. 534 (343 SE2d 770) (1986), it was permissible in this state for a trial court to give in charge the language found in OCGA § 40-6-392 (b) (3) so long as the trial court also charged that the presumption contained in that code section was rebuttable, reasoning that such an instruction obviated any due process concerns by creating a permissible rather than a mandatory presumption. See, e.g., Brown v. State, 174 Ga. App. 470 (330 SE2d 408) (1985); Olsen v. State, 168 Ga. App. 296 (1) (308 SE2d 703) (1983); McCann v. State, 167 Ga. App. 368 (306 SE2d 681), cert. den., 464 U. S. 1044 (1983). In Peters we reexamined our previous position in light of the recent United States Supreme Court case Francis v. Franklin, 471 U. S. __ (105 SC 1965, 85 LE2d 344) (1985), and, applying the reasoning contained therein, found that the charge previously upheld in McCann, supra, and its progeny, appeared to instruct the jury to apply both mandatory and permissive presumptions. We also adopted the Court’s conclusion in Franklin that “ ‘(a) reasonable juror could easily have resolved the contradiction in the instruction by choosing to abide by the mandatory presumption and ignore the prohibition of presumption.’ Francis v. Franklin, [85 LE2d supra at 358.]” Peters, supra at 468. Thus “we . . . caution [ed] the bench and bar that, in all likelihood, such charge in the language of OCGA § 40-6-392 (b) (3) is subject to reversal based upon impermissible burden shifting, even where the jury is instructed that the presumption contained therein is rebuttable. We suggest instructing the jury in cases prosecuted under OCGA § 40-6-391 (a) (1) to the effect that where the blood-alcohol content is shown to be 0.10 percent or higher, the jury may infer that the person was under the influence of alcohol, and that whether such inference is made is a matter solely within the discretion of the jury.” Peters, supra at 468. But see Stewart v. State, 176 Ga. App. 148 (335 SE2d 603) (1985).

In the present case, the trial court gave in charge both the language found in OCGA § 40-6-392 (b) (3) and that suggested by us in Peters. Although possibly constituting an improvement over the “rebuttable presumption charge,” I agree with the majority that the charge given in the case sub judice suffers the same constitutional infirmity as that discussed in Peters. Thus, I find it necessary once again to caution the bench and bar concerning the possibility of reversal when the jury is charged in the language found in OCGA § 40-6-392 (b) (3); rather, I would urge the trial courts in this state to give instead the language suggested in Peters, which is also found in the Council of Superior Court Judges Suggested Pattern Jury Instructions, Vol. 2, Criminal Cases.

Based on the foregoing, I would remand the case to the trial *214court for sentencing under Count 2.

Decided March 18, 1987. John Kirby, for appellant. Ralph T. Bowden, Solicitor, Elliott A. Shoenthal, Assistant Solicitor, for appellee.

I am authorized to state that Judge Carley joins in this special concurrence.