A. Fact-misunderstanding and legal principles that the Defendant had a difficult condition to drive normally due to the influence of drinking at the time of the instant case

Although there are many circumstances that can not be said to exist, the court below found the defendant guilty of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Bodily Injury resulting from Dangerous Driving) against the defendant on the basis of the numerical value of the measurement of drinking alcohol. Such judgment of the court below is erroneous in the misunderstanding of facts and

B. The sentence of the lower court’s unfair sentencing (one hundred months of imprisonment) is too unreasonable.

2. Determination on the misapprehension of facts and misapprehension of legal principles

A. The crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes is established when one causes bodily injury or death by driving a motor vehicle while normal driving is difficult due to influence of alcohol.

In this context, “driving a motor vehicle in a state where normal driving is difficult due to influence of alcohol” means a case where a driver is unable to fulfill his/her duty of care required for driving under the Road Traffic Act because he/she is unable to drive the motor vehicle due to his/her influence of alcohol, decrease in his/her physical exercise ability and judgment ability, or unable to observe the operation methods of mechanical devices, such as steering gear and brakes necessary for driving the motor vehicle, etc., which are essential for driving the motor vehicle. As the influence of alcohol differs depending on a person, whether the motor vehicle falls under “the state where normal driving is difficult” should be determined by comprehensively taking into account not only the driver’s driving degree in relation to specific traffic accidents, but also whether the motor vehicle can be seen as alcohol smell, and immediately, whether the driver’s condition, such as the situation of the motor vehicle before and after the traffic accident, the developments leading up to the traffic accident, the degree of the ability to exercise due diligence to the traffic situation, and whether the operation of the motor vehicle operation equipment has been properly controlled (see Constitutional Court Decision 2009 May 28, 2009