도로교통법위반(음주운전)
The judgment of the court below is reversed.
The defendant shall be innocent.
1. Summary of grounds for appeal;
A. In fact, misunderstanding of legal principles and police officers demanded the hotel room in which the defendant was accommodated at the time to measure alcohol without permission. This is an illegal drinking measurement that does not abide by due process and the degree of alcohol concentration among blood obtained therefrom cannot be used as evidence of guilt.
B. The sentence of the lower court’s improper sentencing (two years of suspended sentence in August) is too unreasonable.
2. On October 14, 2015, the Defendant issued a summary order of KRW 3 million as a crime of violating the Act on Special Cases concerning the Settlement of Traffic Accidents and a crime of violating the Road Traffic Act (drinking) at the Seoul Central District Court on the same day, and KRW 1 million as a crime of violating the Road Traffic Act (drinking) at the same court on May 26, 2017.
Although the Defendant violated the provision on prohibition of driving under the influence of alcohol twice or more, on August 3, 2017, the Defendant was under the influence of alcohol content of 0.137% from blood transfusion around 05:24 on August 3, 2017, and was driving a emulated car at approximately 50 meters from the restaurant parking lot located in Seocho-gu Seoul Metropolitan Government to the near D hotel parking lot.
3. Determination
A. In full view of Articles 12(1) and (5) of the Constitution of the Republic of Korea, and Articles 200-5, 213-2, and 308-2 of the Criminal Procedure Act, in a case where evidence is collected based on an illegal act that does not comply with a legitimate procedure, the admissibility of the secondary evidence acquired based on such evidence as well as the relevant evidence shall be denied.
However, the above principle of exclusion of illegally collected evidence is aimed at guaranteeing the fundamental human rights of the people by suppressing an illegal act in the investigation process, so the influence of an act in violation of due process is interrupted or extinguished.
As evidence collected in a state that can be seen, even if it is admitted as evidence, it does not infringe on the substantial contents of due process, so there is no reason to deny the admissibility.
Therefore, due process taken in the process of evidence collection.