도로교통법위반(음주측정거부)
The judgment of the court below is reversed.
The defendant is not guilty. The summary of the judgment against the defendant shall be published.
1. The summary of the grounds for appeal (misunderstanding of facts) is as follows: (a) the Defendant was unable to comply with the pulmonary measuring instrument due to disorder in the function of the abandonment; (b) so, the Defendant demanded a measurement by blood collecting; (c) however, the police officer in charge impliedly taken the Defendant’s demand; and (d)
2. Determination
가. 이 사건 공소사실의 요지 피고인은 2015. 4. 24. 03:30 경 의정부시 의료원 앞 도로에서부터 같은 시 의정부동 433 앞 도로까지 약 1.5km 구간에서 술을 마신 상태로 C 쏘나타 승용차를 운전하였다는 이유로 의정부 경찰서 D 지구대 소속 경위 E으로부터 피고인에게 서 술 냄새가 나고 눈이 빨갛게 충혈되어 있는 등 술에 취한 상태에서 운전하였다고
For about 20 minutes, there was a reasonable reason to determine a person, and it was demanded to respond to the measurement of drinking by inserting the whole in a drinking measuring instrument three times for about 20 minutes.
그럼에도 불구하고 피고인은 음주 측정기에 입김을 불어넣는 시늉만하고 이를 회피하여 정당한 사유 없이 경찰공무원의 음주 측정 요구에 응하지 아니하였다.
B. The lower court found the Defendant guilty of the instant charges following the adoption of the legal statement of E, a police officer in charge, as evidence of guilt, and the report on the detection of a driver in charge as evidence of guilt.
(c)
(1) There is a duty to inform a driver who fails to comply with the pulmonary measuring instruments without any special reason that the police officer has a method of measurement by blood collection and ask the driver whether he/she has selected.
Although it is not possible to do so, under the interpretation of Article 44(2) and (3) of the Road Traffic Act, where it is difficult or extremely difficult for a pulmonary measuring instrument to measure the pulmonary measuring instrument due to a driver's physical disorder, etc., or where a driver requests a measurement from the beginning of the pulmonary measuring instrument, the procedure for the measurement by the pulmonary measuring instrument is omitted.