A. Article 148-2(1)2 and Article 44(2) of the Road Traffic Act provides that a person who refuses to comply with a request for a drinking test by a police officer’s respiratory examination shall be punished.

Although the Defendant merely received a request from a police officer for a measurement of drinking alcohol from blood collection, and did not have a request for a measurement of drinking, the lower court found the Defendant guilty of the instant facts charged. In so determining, the lower court erred by misapprehending the legal doctrine or misapprehending the legal doctrine.

B. The sentence of the lower court that is unfair in sentencing (an amount of five million won) is too unreasonable.

2. Determination

A. On September 30, 2017, the following circumstances acknowledged by the lower court’s argument of misunderstanding of facts or misapprehension of the legal doctrine, namely, (i) the B District security guards C, immediately after the Defendant’s demand for the measurement of drinking alcohol; (ii) the Defendant’s defect in the measurement of drinking using a drinking measuring instrument; (iii) the Defendant refused the measurement of drinking alcohol; (iv) went out of the emergency room because the Defendant’s refusal to take the measurement of drinking; and (iv) the Defendant’s demand for the measurement of drinking alcohol repeatedly by notifying the Defendant of the crime of refusing to take the measurement of drinking alcohol; and (iv) the Defendant repeatedly demanded the measurement of drinking alcohol, but the Defendant strongly rejected the measurement of drinking alcohol.

“The investigation report was prepared, and the investigation report was accompanied by a photograph of the head of the emergency room, wherein the defendant was in fact in the investigation report, and was accompanied by a photograph of the head of the emergency room, and the investigation record 22-25 pages 22-25 of the investigation record. ② The above C appeared as a witness at the court below and stated to the same effect as the above investigation report, but did not prepare a register

The defendant stated that the police officer only demanded the measurement of alcohol due to blood collection, but does not demand the measurement of alcohol due to the breath measurement. However, the defendant stated that the police officer only demanded the measurement of alcohol due to breath measurement.