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소송대리인 변호사 @@@

소송복대리인 변호사 ###

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2. To suspend the effect of the above disposition until this judgment becomes final and conclusive;

3. The costs of lawsuit shall be borne by the defendant.

The following facts are not disputed between the parties, or may be acknowledged by considering the whole purport of the pleadings in each entry in Gap evidence 1, Eul evidence 2-2, Eul evidence 3-8, Eul evidence 4-2, and Eul evidence 4-3.

A. The Plaintiff acquired a Class II ordinary driver’s license on July 15, 1998, and was subject to the disposition of suspension of driver’s license on September 21, 2001 by driving a motor vehicle in the state of drinking alcohol concentration of 0.091%, and was subject to the disposition of suspension of driver’s license on December 23, 2004.

B. However, around 23:10 on October 23, 2005, the Plaintiff driven a car owned by himself and driven a car with 00-dong Busan ○○-gu 00-dong roads, and was found to have been exposed to the crackdown on drunk driving, and as a result, the Plaintiff raised an objection to the 0.056% of the blood alcohol level to the 0.056% of the numerical value, and requested the blood collection test while raising an objection. Accordingly, around 23:25, it was found that the blood alcohol level was 0.049% of the blood alcohol level as a result of collecting the Plaintiff’s blood from the 00 hospital located in the same Dong and requesting the examination to the south part of the National Institute of Scientific Investigation

C. The Defendant deemed that the Plaintiff’s blood alcohol level was continuously reduced for about 15 minutes from the time of the aforementioned detection to the time of blood collection, and determined that the Plaintiff’s blood alcohol level at the time of the detection was 0.051% (=049% + 0.008% + 15/60 x 15/60) of the blood alcohol level at the time of the detection in accordance with the Bamark formula by applying the general statistical deposit of 0.008-03% which is the most favorable to the Plaintiff out of the range of 0.08-03% of the general statistical deposit with respect to the blood alcohol concentration reduction rate per hour, and that the numerical value was 0.05% or more, which is the legal basis for the prohibition of drinking alcohol under the Act. On November 15, 2005, the Defendant revoked the Plaintiff’s license under Article 205 subparag. 254 of the former Road Traffic Act (amended by Act No. 7545, May 31, 2005).206).

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) Summary of the Plaintiff’s assertion

(A) Considering the error that may arise in the course of blood collection inspection, it is difficult to believe that the test value of 0.049% is the same, and the Plaintiff’s blood alcohol concentration decreased by 0.002% from the time of detection to the time of blood collection is not reliable in light of the following: (a) the Plaintiff’s blood alcohol concentration decrease by 0.02%; and (b) there is no credibility in light of the probability of error that occurs in the course of measuring the distance between the time from the detection to the time of collection; and (c) the individual factors affecting the increase, decrease, and speed of blood alcohol concentration at the time of detection

(B) Unless otherwise, the Plaintiff is engaged in the goods delivery service of an enterprise called 'OOO' and supports her wife and 2 children. The instant disposition is abuse of discretion or goes beyond the scope of discretion, considering the following: (a) the revocation of the instant driver's license would inevitably lead to the establishment of the workplace; and (b) the family's livelihood would be prevented; and (c) such circumstance and estimated drinking water would be sufficiently beyond the legal standard.

(2) Summary of the defendant's assertion

In addition, the blood collection test result also significantly exceeded the permissible limit under the law as 0.059%, and the result of the blood collection test added the blood alcohol concentration reduction rate for the time from the detection to the collection of blood, which is most favorable to the Plaintiff, the instant disposition also exceeds the permissible limit of 0.051%, and it satisfies the legitimate requirements, and it cannot be said that the instant disposition is abused or deviates from its discretionary authority, in light of the fact that the Plaintiff has a history of driving alcohol twice.

B. Provisions of relevant statutes

According to Article 41(1) and (4) of the former Road Traffic Act and Article 31 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 19493, May 30, 2006) (amended by Presidential Decree No. 19493, Jun. 1, 2006), no motor vehicle shall drive a motor vehicle in a state of drinking not less than 0.05% alcohol level. According to Article 78(1)14 of the same Act, when a person who drives a motor vehicle twice or more in violation of the above provision makes another person drives a motor vehicle again, the driver's license shall be revoked as necessary. According to Article 70(2)5 and 6 of the same Act, if the driver's license is revoked merely due to the reason of the driver's license, the driver's license may not be obtained for one year from the date of revocation, but if the license is revoked again by a person who has two or more times of power or more as above, the driver's license may not be obtained for two years.

(1) In measuring the blood alcohol level of a driver with a breath alcohol level in comparison with the breath test result and the blood collection test result, there may be problems in the accuracy and reliability of the test result depending on the condition of the breath, the method of manipulation, and the degree of cooperation of the other party. Thus, in cases where the breath alcohol level measured by the breath alcohol measuring instrument and the result of the blood collection test are different, barring special circumstances, such as artificial manipulation or interference in the process of blood collection or testing, it is deemed that the blood collection test result is more accurate than the result by the breath alcohol measuring instrument.

However, in this case, inasmuch as there is no evidence to deem any error in the process of collecting blood from the time when the Plaintiff was found to have been found to have been in the course of the blood collection test while driving a car, it is reasonable to determine the legitimacy of the disposition of this case based on the result of blood collection test (0.049%), rather than the alcohol level measured by the pulmonary drinking measuring instruments (0.056%).

(2) The credibility of the suspected drinking alcohol level

(A) If the standard driver’s blood level was discovered in the blood driving control and the blood collected after a certain period of time was not immediately recovered, but the blood was found to have been recovered, then the blood alcohol level at the time of detection can be presumed by adding the blood alcohol level from the detection to the collection of blood at a reasonable time by applying the blood alcohol reduction rate.

However, the time required for decomposition of alcohol taken through drinking to the body may not uniformly say that there is a difference depending on the body quality of the person undergoes testing, the amount of normal drinking, the kind of drinking alcohol and the degree of food in disguised manner, the degree of physical activities after drinking, etc. However, it is generally known that blood alcohol concentration between 30-90 minutes and 0.08-03% per hour after the final drinking time reaches the highest level.

Thus, the reverse calculation of the drinking water level at the time of detection by the Bamark formula can only be applied to the stage when the blood alcohol level has been reduced by the highest level, and if the concentration has been measured in the stage where the blood concentration has yet to increase, it is not permissible to reverse calculation by adding the blood alcohol concentration decrease. In this case, it is only to the extent that the blood alcohol level inferred by the Bamark formula exceeds the legal standard for the prohibition of drunk driving, and accordingly, the disadvantage between the disqualified period during which the license was granted to the Plaintiff due to the previous force is double or high compared to the ordinary cases. Thus, it is necessary to carefully determine whether the Plaintiff's blood alcohol level has risen from the detection of the alcohol driving to the collection of blood level or whether the Plaintiff's blood alcohol level has risen during the course of collecting blood.

Therefore, barring any special circumstance, barring any special circumstance, it is recognized that the blood alcohol concentration after drinking is generally required up to the highest level by applying the time limit of 30-90/10, which is most favorable to the Plaintiff, from the time of blood driving to the time of blood collection to the time of blood collection has been completed at least 90 minutes after the blood collection was finished, but the reverse calculation result by the Defendant’s Badmark formula is reasonable.

(B) Facts of recognition

The following facts may be recognized by comprehensively taking into account the overall purport of the pleadings in each entry of Gap evidence 7-1-6, Eul evidence 3-6, Eul evidence 4-2, and Eul evidence 4-3:

① 이 사건 당일 △△경찰서 소속 순경 이 호흡식 음주측정기로 원고의 음주수치를 측정한 다음 작성하고 원고가 무인한 주취운전자 적발보고서에는 최종음주 시각이 같은 날 18:00경으로 기재되어 있으나, 한편 채혈검사결과가 나온 후 2005. 11. 8. 위 순경 ◎◎◎이 작성하고 원고가 서명한 주취운전자 적발보고서에는 최종음주시각이 22:00경으로 기재되어 있다. 그리고 2005. 11. 8. 같은 경찰서 소속 경위 ▷▷▷이 작성한 원고에 대한 피의자신문조서상으로는 원고가 이 사건 당일 20:00경 한정식 음식점에서 거래처 관계자 2명과 함께 저녁을 먹으면서 맥주를 4잔 정도 마신 후 대화를 나누면서 시간을 보내다가 승용차를 운전한 것으로 되어 있으며, 부산지방검찰청 검찰주사보 777가 2005. 12. 13. 작성한 '피의자 상대 음주사실관계 등 확인 보고 상으로는 같은 날 이루어진 전화통화에서 원고가 이 사건 당일 거래처 관계자 2명과 함께 제녁식사를 하면서 맥주 3~4병 가량을 나누어 마셨는데 자신의 음주량은 맥주 1병 정도이거나 그보다 약간 많은 정도였고 20:00경부터 21:00경까지 식사를 한 후 2시간 가량 승용차에서 쉬다가 운전을 하였다고 답변한 것으로 기재되어 있는 반면, 이 사건 음주운전에 관한 형사재판사건인 부산지방법원 2006고정930 도로교통법위반(음주운전) 사건에서는 원고가 2006. 4. 26. 열린 제1회 공판기일에서 변호인의 반대신문을 통하여 맥주 4잔을 마신 후 1시간 가량 지나 운전을 한 것으로 진술하였다.

② Meanwhile, on the day of the instant case, the report on the circumstantial statement of a drinking driver prepared by the police officer as seen above, the Plaintiff stated that all the blood, words, and walking conditions were normal at the time of regulating drinking driving.

③ The Plaintiff was a summary order of KRW 1.5 million on December 28, 2005 due to drinking driving of the instant case and was sentenced to a summary order of KRW 1.5 million on December 28, 2005. However, upon receiving a request for formal trial, the Plaintiff was sentenced to not guilty on May 24, 2006 after receiving the judgment by the Busan District Court 2006 High Court 930, and the Prosecutor appealed against this, and the appellate procedure is in progress by the Busan District Court 2006No1427.

(C) Specific determination

According to the above facts, the plaintiff stated that the last time of drinking alcohol is about 90 minutes or more from about 23:10 to about 18:00, or about 21:00, or about 22:00 to about 90 minutes, which is the time of drinking alcohol driving, while going through the investigation and criminal trial conducted by the police and the prosecution, and it seems that the plaintiff was also about 22:0 to about 22:10, or about 90 minutes, or not clearly mentioned the time. The reason why the contents of each plaintiff's statement are different is that the plaintiff is investigated or tried.

As such, it is difficult to determine which of the statements made by the Defendant is more reliable because it was difficult or uncertain to see the toxic alcohol level expected to be favorable to oneself. Therefore, it is difficult to determine which point out of these statements is more reliable. As such, it is difficult to determine whether the Plaintiff’s blood alcohol level has risen during the time between the detection of the above drinking alcohol level from the time of the detection to the collection of blood, whether the Plaintiff’s blood alcohol level has risen, whether it was in the summer, or whether the Plaintiff’s blood alcohol level was at any moment at any moment through the rise. However, it is difficult to determine whether the Plaintiff’s blood alcohol level continuously decreased during this period, even if the Defendant assumed that the blood alcohol concentration concentration of the Plaintiff was continuously decreased during this period, and recognized that the Plaintiff’s blood alcohol level at the time of detection was 0.02% (0.08% x 15/60) as 0.051% in addition to the blood alcohol concentration at the time of the blood alcohol level at the time of the detection.

Therefore, it cannot be readily concluded that the Plaintiff’s blood alcohol level decreased between about 15 minutes from the time of detection of the above alcohol driving to the time of collecting blood, and as long as the blood alcohol concentration level of 0.049% revealed as a result of the blood collection test falls short of 0.05%, which is the legal prohibition of drunk driving and the administrative disposition criteria, the instant disposition is unlawful without any need to examine the Plaintiff’s second argument, as it does not meet the legal requirements for the revocation of driver’s license.

3. Conclusion

Therefore, in order to accept the Plaintiff’s claim and prevent the Plaintiff from causing irrecoverable damage due to the execution of the instant disposition until this judgment becomes final and conclusive, the validity of the instant disposition shall be suspended until the final and conclusive date of this judgment. It is so decided as per Disposition.