A. misunderstanding of facts and misunderstanding of legal principles that Defendant was found guilty of the instant crime on the basis of erroneous determination of facts and misapprehension of legal principles, even though the Defendant did not properly reflect the blood alcohol concentration at the time of driving, which was measured at the time when about 30 to 90 minutes passed from the final drinking time, since the blood alcohol concentration at the time of driving.

B. Decision of the court below on unreasonable sentencing: one year of imprisonment.

2. Determination

A. In a situation where it is difficult to determine the assertion of mistake of facts and misapprehension of legal principles as to whether the blood alcohol level at the time of driving is increased or when it was down, even if the blood alcohol level measured at the time when the driving was completed for a considerable time after the completion of the operation, it cannot be readily concluded that the blood alcohol level at the time of actual driving exceeded the punishment standard.

Although there are differences for individuals, it is generally known that the blood alcohol concentration between 30 to 90 minutes after drinking has reached the highest level, and then 0.08 to 0.03% per hour (average 0.015%) has decreased by 0.08 to 0.03% (average 0.015%). 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.

Of course, even if there is an interval between the time of driving and the time of measuring the blood alcohol concentration, and the time seems 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 question of whether the level of punishment was above the level of punishment at the time of driving is the difference between the time between the driving and the measurement, the difference between the measured level of blood alcohol concentration and the punishment standard value.