교통사고처리특례법위반(치상)등
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 1,500,000.
The above fine shall not be paid by the defendant.
1. Summary of grounds for appeal;
A. Error of facts or misapprehension of legal principles (the fact of violation of the Road Traffic Act) was completed on February 15, 2018 by the Defendant, and the blood alcohol concentration of the Defendant at the time of driving of the instant case was increased.
Therefore, it cannot be readily concluded that the Defendant’s blood alcohol concentration exceeds the punishment standard (0.05%) on the sole basis of the fact that the blood alcohol concentration measured after 97 minutes from the final drinking time was 0.05%. However, the lower court erred by misapprehending the legal doctrine or misapprehending the legal doctrine.
B. The lower court’s sentence of unreasonable sentencing (fine 2,00,000) is too unreasonable.
2. Judgment on misconception of facts or misapprehension of legal principles
A. On February 15, 2018, the Defendant, while under the influence of alcohol of 0.05% of the blood alcohol level around 23:45 on February 15, 2018, driven B B-V car at the 1km section from the front of Yeongdeungpo-gu Seoul Metropolitan City I to the front of the road of the same Gu C.
B. The lower court found the Defendant guilty of this part of the facts charged by comprehensively taking account of the adopted evidence.
(However, the lower court ex officio acknowledged the blood alcohol concentration by “not less than 0.05%” rather than the blood alcohol concentration on the facts charged. (C)
(1) In the circumstances where it is difficult to determine whether the blood alcohol level at the time of driving under the relevant legal principles is the rise of blood alcohol level or at the time of taking lessons, even if the blood alcohol level measured at the time when the driving is completed after a considerable time has passed, it cannot be determined that the blood alcohol level at the time of actual driving exceeded the punishment standard. Although there are differences for each individual, it is generally known that the blood alcohol level at the time of actual driving exceeds the punishment standard. While the blood alcohol level at the time of 30 minutes to 90 minutes after drinking, it is generally known that the blood alcohol level at the time of actual driving has reached the highest value and thereafter 0.08% or 0.03% (average 0.015%) per hour.