☢ test - Í

criminal actions arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391. In such cases, there is a presumption that the defendant was not under the influence of alcohol, which negative presumption must be rebutted by the State's production of such other probative evidence as will authorize a finding that the defendant was nevertheless a less safe driver as the result of his alcohol consumption.’ (Punctuation omitted.) Collum v. State, 195 Ga.App. 42, 44(2), 392 S.E.2d 301 (1990). Consequently, the trial court's jury charge in the current case that the presumption arising from an alcohol concentration of 0.05 or less is rebuttable was correct and did not shift the burden of proof to Cornell.” 15. REFUSAL OF IMPLIED CONSENT/FIELD SOBRIETY Johnson v. State, 323 Ga.App. 65, 744 S.E.2d 921 (July 3, 2013). DUI and improper lane change convictions affirmed; no error in declining defendant’s “request to charge the jury that the State can obtain a search warrant to test a suspect's blood for the presence of alcohol in the event that the suspect refuses a State-administered test under the implied consent law. We do not agree that the failure to charge the jury with this principle was erroneous. The court properly charged the jury regarding implied consent law, that a refusal could be admitted into evidence, and that such evidence was not sufficient alone to prove that an individual was guilty of DUI-less safe. See OCGA § 40–5–67.1(b).” Cordy v. State, 315 Ga.App. 849, 729 S.E.2d 13 (May 10, 2012). DUI conviction affirmed; trial court properly declined defendant’s request to charge: “I further charge you that standing alone, the mere fact of a person's having refused an officer's request to take a chemical test is not in and of itself determinative of the issue of whether the person was or was not under the influence alcohol. There may be other legal consequences of a civil nature against a person for the refusal, but there is no inference in law that a person must be intoxicated simply because he chooses to exercise his legal right to refuse to submit to an optional test. (Emphasis supplied.)” “We find that the italicized portion of the request is inaccurate and argumentative and that the charge as given by the trial court accurately covered the substance of Cordy's request,” citing Crusselle (April 7, 2010), below. Wagner v. State, 311 Ga.App. 589, 716 S.E.2d 633 (September 7, 2011). DUI and related convictions reversed; trial court erred by charging jury that it could infer from implied consent refusal “that the test would have shown the presence of alcohol ‘which impaired his driving.’” Based on Baird (March 28, 2003), below. Reversal required even though defense didn’t object at trial, as the charge constituted “plain error,” that is, it was “a substantial error in the jury charge affecting the burden of proof.” The charge “substantially affected the State's burden of proof by shifting it to Wagner, requiring him to rebut the inference that he was an impaired driver because he refused to submit to the breath test.” Blackwell concurs specially, asserting that the charge is an erroneous statement of law, and contending for a different definition of “plain error”: “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 added).” Crusselle v. State, 303 Ga.App. 879, 694 S.E.2d 707 (April 7, 2010). Defendant’s DUI conviction affirmed; jury charge on refusal to perform field sobriety evaluations was proper: “A person accused of driving under the influence of alcohol to the extent that he was less safe has the right to refuse to submit to field sobriety exercises, an Alco-Sensor and chemical tests administered by the State. If the State proves such a refusal, however, it is admissible in evidence against him and may be considered as positive evidence creating an inference that the test would show the presence of alcohol, though not that the alcohol impaired his driving. The inference that the test would show the presence of alcohol may be rebutted. And refusal, by itself, is not determinative of whether the person was under the influence of alcohol. To sustain a conviction for driving under the influence to the degree it was less safe, the State must prove that alcohol impaired the Defendant's driving ability. Methods of proving this offense may include evidence of refusal to take field sobriety tests and the breath or blood tests.” “Crusselle argues that a defendant's refusal to take the preliminary tests cannot support an inference that he was intoxicated. This argument is without merit. ‘A defendant's refusal to submit to field sobriety tests is admissible as circumstantial evidence of intoxication and together with other evidence would support an inference that he was an impaired driver.’ Massa [ v. State, 287 Ga.App. 494, 651 S.E.2d 806 (2007)].” Defendant’s argument that last two sentences of quoted charge violate Baird (March 28, 2003), below , also rejected, finding that the charge as a whole is accurate, if “not … as clear and precise as could be desired.” Accord, Hammill v. State , 327 Ga.App. 588, 758 S.E.2d 336 (May 30, 2014) (same charge, boating under the influence); Holman v. State , 329 Ga.App. 393, 765 S.E.2d 614 (October 29, 2014). Blankenship v. State, 301 Ga.App. 602, 688 S.E.2d 395 (December 14, 2009). Defendant’s less-safe DUI conviction