A. The blood alcohol content was 0.108% as a result of the pulmonary measurement that took effect on April 5, 2018, when the mistake of facts or misapprehension of legal principles, and around 05:25, the Defendant, who completed driving, was so-called an increase in blood alcohol content.

In addition, blood measurement results collected on the same day 07:20% of blood alcohol concentration has been 0.150%, but the said blood collection time is 110 minutes after the completion of operation and about 85 minutes after the respiratory measurement point, and is sufficient enough to doubt that the blood alcohol concentration at the time of operation had a huge impact on the blood alcohol concentration at the time of operation. Thus, the blood measurement result cannot be used as evidence.

According to the Badmark formula, the blood alcohol concentration at the time of driving was 0.083~0.137%.

Considering the above circumstances, the lower court, which applied Article 148-2(2)2 of the Road Traffic Act, cannot be readily concluded that the blood alcohol content was more than 0.1% at the time of driving, erred by misapprehending the legal doctrine or erroneous determination of facts.

B. The lower court’s sentence of unreasonable sentencing (three million won of fine) is too unreasonable.

2. Determination

A. (1) In a situation where it is impossible to determine whether the blood alcohol concentration measured at the time when the driving was completed is the point of increase of blood alcohol concentration or the point of degradation, the judgment on the assertion of mistake of facts or misapprehension of legal principles (1) (A) Supreme Court Decision 2013Do6285 Decided October 24, 2013, even if the blood alcohol concentration measured at the time when the driving was completed exceeds a minor standard of punishment, it cannot be readily concluded that the blood alcohol concentration at the time of actual driving exceeded the standard of punishment.

Although there are differences for each individual, it is generally known that blood alcohol concentration between 30 to 90 minutes after drinking has reached the highest value, and thereafter, approximately 0.08% and 0.03% per hour (average approximately 0.015%) have decreased. If the driving is in the rise season, the actual measurement has been made.