도로교통법위반(음주측정거부)
The defendant's appeal is dismissed.
1. The summary of the grounds for appeal is that the police officer’s demand for the measurement of alcohol through blood collection was neglected to take a blood collection test, and the police officer did not comply with the respiratory measurement; thus, it cannot be deemed a legitimate demand for the measurement of alcohol, and it did not refuse the measurement of alcohol itself, and the judgment of the court below convicts the Defendant of the charges of this case by misapprehending the legal principles, which affected the conclusion of the judgment.
2. Determination
(a) "A police officer" in Article 44 (2) of the Road Traffic Act means a person who drives a motor vehicle, etc. under the influence of alcohol, in violation of the provisions of paragraph (1), when deemed that it is necessary to ensure the safety of traffic and prevent danger;
When there is a considerable reason to determine a person, the pulmonary examination may be conducted to determine whether a driver is under the influence of alcohol.
In this case, the driver shall comply with the breath measurement by the police officer, and the driver of the vehicle who is dissatisfied with the result of the breath measurement by Article 41(2) of the Road Traffic Act provides that "any driver who is dissatisfied with the result of the breath measurement by Article 41(3) may re-measurement by means of blood collection, etc. with the consent of the driver." However, the systematic interpretation of the provision provides that when the driver who has complied with the breath measurement by the breath measurement is dissatisfied with the result of the breath measurement, the driver may take a breath measurement by blood collection with the consent of the driver. Thus, it is reasonable to view the police officer's control of the breath measurement by the breath measurement in principle (see Supreme Court Decision 2001Do7121, Mar. 15, 2002).
When there is a reasonable ground to appoint a person, police officers shall be the driver.