Opinion
75033.
DECIDED SEPTEMBER 30, 1987.
D.U.I. Upson Superior Court. Before Judge Miller.
Samuel H. Harrison, for appellant.
Johnnie L. Caldwell, Jr., District Attorney, J. David Fowler, Assistant District Attorney, for appellee.
Defendant Ralph Leon Rylee was convicted of driving under the influence and was sentenced to serve twelve months. Defendant's only enumeration concerns the trial court's refusal to give his request to charge concerning presumptions. Defendant argues that although the requested charge was subsequently found by this court to be impermissibly burden shifting, Peters v. State, 175 Ga. App. 463 (2) ( 333 S.E.2d 436) (1985), overruled on other grounds, Hogan v. State, 178 Ga. App. 534 ( 343 S.E.2d 770) (1986), at the time of trial the trial court was required to give the requested charge under the mandate of Olsen v. State, 168 Ga. App. 296 (1) ( 308 S.E.2d 703) (1983) (see also McCann v. State, 167 Ga. App. 368 (2) ( 306 S.E.2d 681) (1983), cert. den., 464 U.S. 1044 (1984), and hence it was error for the court to refuse to do so. "Although [defendant is correct in arguing that] trial in the instant case came before the [ Peters] decision, we apply it here in keeping with the principle that an appellate court applies the law as it exists when the case is before it. Harris v. State, 118 Ga. App. 848 ( 166 S.E.2d 94) [(1968)]; McGregor v. State, 119 Ga. App. 40 ( 165 S.E.2d 915) [(1969)]. We feel this principle to be especially applicable in light of the constitutional ground (due process) of the [ Peters] holding." Aycock v. State, 142 Ga. App. 755, 757 ( 236 S.E.2d 863) (1977). Here the trial court's charge on presumptions contained language similar to that suggested in Peters and contained in the Council of Superior Court Judges Suggested Pattern Jury Instructions, Vol. 2, Criminal Cases. Hence, in the present case the trial court's refusal to give the requested charge affords no basis for reversal.
Judgment affirmed. Birdsong, C. J., and Deen, P. J., concur.