교통사고처리특례법위반등
The judgment of the court below is reversed.
The sentence against the accused shall be determined by a fine of two million won.
Defendant. A fine.
1. Summary of grounds for appeal;
A. At the time of measuring the breath alcohol of the instant case, the police officer notified the Defendant that it is possible to measure the breath alcohol by demanding the Defendant to measure the breath alcohol measuring method.
B. The police officer, by misapprehending the legal principles, did not inform the defendant that blood collection method can be measured.
Even if the measurement of alcohol under Article 44 (2) of the Road Traffic Act means the measurement of alcohol of the breath method, and there is no legal obligation for police officers to notify or recommend the measurement of blood collecting method. Thus, the police officers did not notify the measurement of blood collecting method of alcohol.
Even if the pulmonary measurement method has probative value.
2. Determination
A. It is insufficient to recognize that the police officer in charge requested the Defendant to take a breath test of the breath test method and notified the Defendant that the breath test of the blood collection method is possible.
We do not accept the prosecutor's assertion of mistake.
B. Determination on the misapprehension of the legal principle 1) Article 44(2) of the Road Traffic Act provides that “A police officer is deemed necessary to ensure traffic safety and prevent danger or driving a motor vehicle under the influence of alcohol in violation of paragraph (1).”
If there is a considerable reason to designate a person, the pulmonary examination may be conducted to determine whether a driver is under the influence of alcohol.
In such cases, the driver shall comply with the measurement of police officers.
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In addition, paragraph 3 can re-examine the driver who is dissatisfied with the result of the measurement under paragraph 2 by means of blood collection, etc. with the consent of the driver.
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In the course of investigation into drinking driving, a driver suspected of driving under drinking is subject to the repulmonary measurement under Article 44 (2) of the Road Traffic Act.