도로교통법위반(음주측정거부)
The defendant's appeal is dismissed.
1. The summary of the grounds for appeal: (a) the police officer K demanded a measurement of drinking alcohol by carrying the Defendant into a police box (hereinafter “police box”); (b) during that process, K did not notify the Defendant of the doctrine that the Defendant would have failed to comply with the demand for voluntary driving; (c) did not notify the Defendant that it would be able to escape from the place at any time even after voluntary driving; and (d) did not notify the Defendant that the refusal of voluntary driving would not be at any disadvantage; (b) As such, the aforementioned voluntary driving constitutes illegal arrest and even if the Defendant refused to take a alcohol test under the circumstances of illegal arrest, the crime of the Road Traffic Act is not established.
However, the judgment of the court below which found the defendant guilty is erroneous in misconception of facts and misapprehension of legal principles.
2. It is reasonable to view that the legality of accompanying is recognized only where it is clearly proven by objective circumstances that an investigative agency, etc. was carried out by the suspect’s voluntary will, such as where the suspect, who was aware that the suspect was, or was accompanied, could refuse accompanying the suspect prior to accompanying, was present at any time, and the suspect could freely leave or leave the accompanying place.
(See Supreme Court Decision 2009Do6717 Decided June 30, 201, and Supreme Court Decision 2012Do8890 Decided September 13, 2012, etc.). The following circumstances acknowledged by the evidence duly adopted and examined by the lower court, i.e., (i) a dispute arising in the process of reducing the vehicle of the Defendant’s spoking site and the vehicle of the Defendant’s spoking site, or the vehicle of the I driven by the I from the narrow alley road; (ii) a police officer’s dispatch to the site in accordance with the I’s report; and (iii) a dispute arose, such as where the Defendant was faced with the I’s cigarette butts, if the dispute occurred, K demanded the Defendant to accompany with a police box exceeding 20 to 30 meters away from that of the Defendant, and the Defendant said demand.