Wagner v. State
311 Ga. App. 589
| Ga. Ct. App. | 2011Background
- Wagner was convicted of DUI-Less Safe and DUI-Child Endangerment and this court denied his motion for a new trial.
- On October 3, 2008, a restaurant customer observed a four-year-old child in the parking lot and Wagner subsequently placed the child in his vehicle and drove away.
- A police officer arrived, noted a strong odor of alcohol, slow speech, red/w glossy eyes, and disoriented demeanor, and Wagner refused a breath test.
- Wagner underwent field sobriety tests showing six HGN clues, three of eight walk-and-turn clues, but no clues on one-leg stand and he could recite the alphabet, with all signs inconsistent with a clear impairment.
- Wagner refused a State-administered breath test after being arrested, and the State charged him with DUI-Less Safe and DUI-Child Endangerment.
- The court held that the trial court’s instruction allowing an inference that the test would show alcohol impairing driving was plain error, reversed the convictions, and remanded for a new trial on both counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the breath-test refusal instruction was plain error | Wagner | State | Yes; instruction was plain error and reversible. |
Key Cases Cited
- Baird v. State, 260 Ga.App. 661 (2003) (instruction improper; shifted burden to defendant)
- Duelmer v. State, 265 Ga.App. 342 (2004) (instruction prejudicial; plain error analysis applied)
- Jones v. State, 252 Ga.App. 332 (2001) (plain-error standard for burden-shifting errors)