A. Since the occurrence of the instant accident, the Defendant: (a) was sent to the emergency room of the Ulsan University Hospital; and (b) was in an unidentified condition; (c) the police E measured drinking without obtaining the Defendant’s legitimate request for drinking alcohol measurement or consent thereto.

Therefore, although the "Notification of the Result of Drinking Driving Control" and the "Inquiry about the result of the control of the driver of a drinking driving", which are evidence collected by the illegal drinking measurement procedure, constitute evidence of unlawful collection, the court below found the defendant guilty of the violation of the Road Traffic Act (driving) on the ground of the evidence illegally collected, the court below erred in violation of the principle of exclusion of illegally collected evidence under the Criminal Litigation Act and affected the judgment.

B. The punishment sentenced by the lower court (six months of imprisonment) is too unreasonable.

2. Determination:

A. The following circumstances acknowledged by the lower court’s judgment as to the assertion of misapprehension of the legal doctrine and the evidence duly adopted and investigated by the first instance court, namely, the police E, at the time of the instant case, who conducted a drinking test to the Defendant, alleged that “The Defendant, who was in an emergency room, demanded a drinking test to the effect that the Defendant was not driving,” and thus, there is a defect in the first instance court measurement.

After that, the breath measurement is conducted by the breath measurement method.

After notifying the defendant that it is possible to collect blood when he/she gives consent to the measurement value, he/she has taken a breath measurement method with the consent of the defendant.

Afterward, the Defendant stated to the effect that “the Defendant was signed by the Defendant on the PDA device that he/she notified of the fact that the amount of alcohol concentration in blood was measured 0.159%,” and ② the Defendant’s voluntary statement is required to have the amount of respiratory flow exceeding a certain amount (1.251 liter) in order to measure the amount of alcohol concentration in blood in the pulmonary measuring method (see, e.g., Supreme Court Decision 2010Do2935, Jul. 15, 2010).