concurring specially.
The majority is right to inquire whether the jury instruction in this case concerning the inferences a jury properly may draw from a refusal to take a breath test is plain error, and the majority correctly concludes that it is, so I agree that we must reverse the judgment of conviction below. But I do not agree with all that is said in the majority opinion, and for this reason, I concur specially.
Of most concern to me is the pronouncement of the majority, without reservation, that “a substantial error in the jury charge affecting the burden of proof constitutes plain error.” In some sense, most of the jury instructions in a criminal case “affect” the burden of proof in one way or another, whether an instruction touches upon the nature of the burden itself, the identity of the party having the burden, the specific elements of the crime or affirmative defense that must be proven to discharge the burden, or the nature and quality of the evidence that is offered to carry the burden. And I am not sure that every substantial, plain or obvious error with respect to such a charge always and necessarily amounts to reversible error in the absence of a timely and proper objection below. Perhaps every such error is reversible error, but as of today, I am not yet convinced that it must be so, and I cannot, therefore, join the sweeping pronounce*594ment about plain error in the majority opinion. The relevant question is not, I think, whether an erroneous instruction “affects” the burden of proof in some way.2
Instead, the proper inquiry is found in the clear and unambiguous terms of OCGA § 17-8-58 (b), which provides in pertinent part that a failure to make a timely, specific, and proper objection to a portion of the jury charge in a criminal case “shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties.” (Emphasis supplied.) The words of this statute quite obviously are drawn from Federal Rule of Criminal Procedure 52 (b), and the cases discussing Rule 52 (b) make clear what they mean: plain error is error that is clear or obvious, see United States v. Olano, 507 U. S. 725, 734 (II) (A) (113 SC 1770, 123 LE2d 508) (1993), and in most cases, such an error affects substantial rights when it likely affected the outcome of the proceedings below. See id. The proper inquiry in this case, therefore, is whether the instruction that the court below gave to the jury was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings.
We disapproved the very instruction given in this case about eight years ago in Baird v. State, 260 Ga. App. 661, 662-664 (1) (580 SE2d 650) (2003), so the giving of the instruction in this case was error, and the error is obvious. Impairment of the ability to drive safely was the principal disputed issue at trial, and the question of impairment in this case was a close one, especially considering, among other things, that some of the field sobriety tests failed to indicate impairment and that Wagner offered a facially reasonable explanation for his erratic driving. I think Wagner has carried his burden of showing that the erroneous instruction likely affected the outcome of the proceedings below,3 and for this reason, I concur in the judgment.
*595Decided September 7, 2011. Christopher R. Geel, Lawrence J. Zimmerman, for appellant. Barry E. Morgan, Solicitor-General, Christopher S. Banning, Assistant Solicitor-General, for appellee.This Court has suggested before that the instruction that was given in this case shifts the burden of proof to the defendant by, as the majority says, “requiring him to rebut the inference that he was an impaired driver because he refused to submit to the breath test.” See, e.g., Baird v. State, 260 Ga. App. 661, 662-664 (1) (580 SE2d 650) (2003); Duelmer v. State, 265 Ga. App. 342, 342-343 (593 SE2d 878) (2004). I am not sure these prior opinions fairly characterize the instruction. The charge quite clearly instructs that the inference is permissive, and the problem with the instruction is not that it requires a defendant to disprove impairment, but rather that it authorizes the jury to draw an inference of impairment from evidence that logically does not suggest impairment. It is an erroneous instruction to be sure, but I am not convinced that it is a burden-shifting one (or that it matters whether it is “burden-shifting” or otherwise erroneous).
Unlike a harmless-error analysis, where the appellee bears the burden of showing that an error did not likely affect the outcome below, a plain-error analysis requires the appellant to make an affirmative showing that the error probably did affect the outcome below. See Olano, 507 U. S. at 734 (II) (A).