(b) In cases of failing to comply with a police officer's request for a measurement of alcohol for investigation into a criminal act under the Road Traffic Act, whether the crime of failing to comply with a request for measurement of alcohol under subparagraph 2 of Article 107-2 of the Road

(c) Whether there exists a need for a measurement of traffic safety and the prevention of danger in a case where a driver has finished driving at the time of a request for a measurement of drinking;

B. Article 41(2) of the Road Traffic Act cannot be deemed to have already been granted a police officer the authority to measure alcohol for the purpose of investigating criminal acts under the Road Traffic Act. Thus, in a case where a police officer's request for measurement of alcohol for criminal investigation refuses to comply with such a request for measurement of alcohol by other evidence, the crime of non-compliance with the measurement of alcohol under subparagraph 2 of Article 107-2 of the Road Traffic Act is not established, separate from the fact

C. “The necessity of traffic safety and prevention of danger” as stipulated in Article 41(2) of the same Act refers to the specific risk that may arise due to the driver’s driving, and such necessity must exist at the time when the driver was requested to take a drunk test. As such, where it is evident that the driver does not drive a motor vehicle any longer due to the completion of the driver’s driving, even if it falls under the crime of drinking under the crime of driving under the Road Traffic Act in that it was immediately after the driving under the influence of alcohol, the need for traffic safety due to the above driving and prevention of danger are extinguished.

Article 107-2 Item 2 of the Road Traffic Act is established when a person suspected of being under the influence of alcohol from a police officer fails to comply with a police officer's measurement under Article 41 (2) of the same Act. In light of the purport of Article 41 (2) of the same Act and Article 1 of the same Act, a police officer's drinking measurement under Article 41 (2) of the same Act is necessary to prevent in advance the violation of the safety of road traffic or danger to a person leaving a vehicle without restraint of a driving under the influence of alcohol. In other words, only when "traffic safety and the necessity for prevention of danger" exist, it is an preventive administrative act that can demand a driver suspected of driving under the influence of alcohol, and it cannot be deemed that a police officer has the authority to take a alcohol measurement for investigation of a criminal act already occurred under the same Article, so if a police officer fails to comply with a request for a criminal investigation, the crime of non-driving under Article 107-2 subparagraph 2 of the same Act can be punished as a crime of drunk driving under other evidence.

In addition, the phrase "the necessity for traffic safety and prevention of danger" refers to the concrete danger that may arise due to the driver's driving, and such necessity must exist at the time when the driver was requested to take a drunk test. Therefore, in cases where it is evident that the driver will no longer drive a motor vehicle while drinking after the driver completed the driving, even though it falls under a flagrant act of the crime of drinking under the Road Traffic Act in that it was immediately after the driving of the motor vehicle, the need for traffic safety due to the above driving and prevention of danger are extinguished (see Supreme Court Decision 92Do3402 delivered on May 27, 1993).

According to the records of this case, with regard to the facts charged by the defendant that the defendant did not respond to a drinking test by the police officer while driving a vehicle after drinking, the court below acknowledged that the defendant had not complied with a drinking test by driving about 500 meters in front of the wedding hall and driving the above vehicle on the road after driving the vehicle at the front of the wedding hall in order to stop. The court below decided that the defendant had not complied with a drinking test of the above Article 1 of the Road Traffic Act because the defendant had not complied with a drinking test of the police officer before the time of entering the facts charged, and that the defendant had not complied with a drinking test of the above Article 2 of the Road Traffic Act, and that the defendant had not complied with a drinking test of the above Article 1 of the Road Traffic Act at the place near the Jindo Police Station before the time of entering the facts charged, and that the defendant had not complied with a drinking test of the above Article 4 of the Road Traffic Act at the time of the above request for a drinking test of the defendant, and therefore, it cannot be viewed that the defendant had not complied with the above provision of the first provision of the Road Traffic Act.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Sung-sung (Presiding Justice)