도로교통법위반(음주운전)
The judgment of the court below is reversed.
The defendant shall be innocent.
1. Summary of grounds for appeal;
A. The Defendant, while under the influence of alcohol with a blood alcohol content of at least 0.05%, committed a mistake that the lower court convicted the Defendant of the remainder of the facts charged in this case.
B. The judgment of the court below 1) sentenced a fine to the defendant without examining whether the fine against the defendant is either impossible or difficult to execute after the judgment became final and conclusive, and sentenced a provisional payment order with regard to the fine. 2) The judgment of the court below stated that the blood alcohol concentration in criminal facts is the primary and preliminary. The judgment of the court below contains an error of law that does not specify the facts to be charged.
2. Determination
A. In a situation where it is impossible to determine whether the blood alcohol concentration at the time of driving under the influence of alcohol is the rise or lower time, even if the blood alcohol concentration measured at the time when the driving was completed at a considerable time exceeds the penalty standard, it cannot be readily concluded that the blood alcohol concentration at the time of actual driving exceeds the punishment standard.
Although there are differences for each individual, it is generally known that the blood alcohol concentration between 30 to 90 minutes after drinking has reached the highest level, and then reduces about 0.08% and 0.03% (average about 0.015%) per hour. If the driving is in the rise season, there is a possibility that the blood alcohol concentration at the time of driving is lower than the blood alcohol concentration actually measured.
However, even if the blood alcohol concentration between the time of drinking driving and the time of measuring the blood alcohol concentration and the time is seen to increase the blood alcohol concentration, such circumstance alone cannot be deemed insufficient to prove that the blood alcohol concentration at the time of actual driving exceeds the punishment standard.
In such cases, the punishment standard is also applied at the time of driving.