도로교통법위반(음주운전)
The judgment of the court below is reversed.
The defendant shall be innocent.
1. Summary of grounds for appeal;
A. It cannot be readily concluded that the Defendant’s blood alcohol concentration exceeds the punishment standard level at the time of driving a misapprehension of the legal doctrine.
B. The lower court’s sentence of an unreasonable sentencing (two million won of fine) against the Defendant is too unreasonable.
2. Determination
A. Around 00:48 on March 12, 2019, the Defendant driven a passenger car with blood alcohol content of about 10km from the road near the Nowon-gu Seoul Metropolitan Government Nowon-gu Nowon-gu to the 610-15 internal circulation road of Seongdong-gu Seoul Seongdong-gu, Seongdong-gu, Seoul, with a 0.079% alcohol content under the influence of alcohol.
B. In a situation where it is impossible to determine whether the blood alcohol level at the time of driving under the relevant legal doctrine is the rise of the blood alcohol level or the lower time, even if the blood alcohol level measured at the time when the driving was completed at a considerable time exceeds the penalty standard, it cannot be readily concluded that the blood alcohol level at the time of actual driving exceeds the penalty standard.
Although there are differences for each individual, 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 completed during the rise of the blood alcohol concentration, the blood alcohol concentration at the time of driving is lower than the blood alcohol concentration actually measured.
C. In light of the above legal principles, it is true that there is a doubt that the Defendant is not driving a vehicle while under influence of alcohol exceeding the punishment standard, in light of the fact that the blood alcohol concentration measured at around 00:48 on March 12, 2019, which was 0.078 from around 00:48 on March 12, 2019, which was stated in the facts charged, was considerably exceeded the punishment standard level.
However, it can be identified by the evidence duly adopted and investigated by the court.