In addition, the investigative agency's act of acquiring and keeping blood without the driver's consent for the purpose of collecting criminal evidence can be subject to a written permission for appraisal or seizure warrant from the court under the Criminal Procedure Act, as "disposition necessary for appraisal" or "Seizure". However, where it is possible to obtain a seizure warrant from the court without the driver's consent to collect blood for the purpose of collecting criminal evidence in a situation where it is impossible for the driver to take a drinking test due to the occurrence of a traffic accident while driving under the influence of alcohol and the driver is in an unknown state, and there is no time to obtain a written permission for appraisal or a prior seizure warrant from the court, and the investigative agency may collect and seize blood without the driver's consent or prior warrant in accordance with the Criminal Procedure Act, but even in this case,

Therefore, the suspension or revocation of a driver's license based on the result of the blood collection investigation conducted without the driver's consent in the course of investigating whether a drunk driving is driving or not is conducted without the court's warrant is in violation of Article 44 (3) of the Road Traffic Act, and is bound to be an illegal disposition

1. The lower court determined as follows: (a) on October 26, 2012, the Plaintiff’s blood analysis conducted around 04:25, the Plaintiff’s blood level from the blood collection of the instant case was analyzed as 0.125%; (b) the Plaintiff’s blood level was transported to the hospital emergency center in a state without food due to shocking dives, etc. while driving the car on the Kimhae-si Road; (c) the police officer in charge, at around 06:05 on the same day, collected the Plaintiff’s blood (hereinafter “the instant blood collection”); (d) the police officer did not obtain the Plaintiff’s consent in relation to the instant blood collection; and (e) the Plaintiff’s blood level was considerably 0.125% of alcohol level from the Plaintiff’s blood collection of the instant case; and (e) the Defendant did not recognize the Plaintiff’s personal right to the Plaintiff for reasons of drinking driving on March 6, 2013 as admissible evidence of the Plaintiff’s blood collection exclusion method or alcohol level; (hereinafter “the Plaintiff’s personal right”).

2. However, it is difficult to accept the above determination by the court below for the following reasons.

The Road Traffic Act provides not only criminal punishment provisions in the case of operating a motor vehicle while under the influence of alcohol (Article 148-2(2)), but also the Commissioner of the Local Police Agency may revoke the driver's license or suspend the validity of the driver's license for a period not exceeding one year (Article 93(1)1) in the case of operating a motor vehicle while under the influence of alcohol.

Meanwhile, Article 44 of the Road Traffic Act provides that a driver shall not drive a motor vehicle under the influence of alcohol (Article 1). When it is deemed necessary to ensure the safety of traffic and prevent danger or when there exist reasonable grounds to recognize that a driver has driven a motor vehicle under the influence of alcohol, police officers may examine whether the driver is under the influence of alcohol. In such a case, the driver shall comply with a police officer’s measurement (Article 2), and with respect to a driver who is dissatisfied with the aforementioned measurement, the driver may take a re-measurement by means of blood collection, etc. with the driver’s consent (Article 54(6) of the Road Traffic Act and Article 32 subparag. 4 of the Enforcement Decree of the Road Traffic Act (Article 54 of the Road Traffic Act). Furthermore, Article 54(6) of the Road Traffic Act and Article 32 subparag. 4 of the Enforcement Decree of the Road Traffic Act provide that

As can be seen, examining whether a national police officer drives a vehicle under the influence of alcohol by means of a breath test, blood test, etc. under the provisions of the Road Traffic Act can be seen as having the nature of an administrative investigation to collect evidence to be used by an investigative agency and a police administrative investigator, as well as the nature of an administrative investigation to collect data for the suspension and cancellation of a driver’s license for the purpose of preventing traffic danger.

However, blood collection (hereinafter “blood collection”) among the above investigation methods concerning drinking driving is a method that directly infringes on the other party’s body, and the Road Traffic Act does not impose any duty to respond to the investigation on the driver differently from the respiratory investigation. Since the Road Traffic Act provides that the driver’s consent should be obtained prior to the measurement (Article 44(3)), it is not allowed to arbitrarily collect blood without the driver’s consent.

In addition, the investigative agency's act of acquiring and preserving blood without the driver's consent for the purpose of collecting criminal evidence can be subject to a written permission for appraisal or seizure warrant from the court under the Criminal Procedure Act, as "disposition necessary for appraisal" or "Seizure". However, in cases where it is possible to obtain a seizure warrant from the court without the driver's consent to collect blood for the purpose of collecting criminal evidence in an urgent situation where it is impossible for the driver to take a breath test due to the occurrence of a traffic accident while driving under the influence of alcohol and the driver is in an unknown state, and there is no time to obtain a written permission for appraisal or a prior seizure warrant from the court, and the investigative agency may collect and seize blood without the driver's consent or prior warrant in order to collect the evidence of the breath crime under exceptional conditions, but even in this case, a seizure warrant must be obtained after the fact (see Supreme Court Decision 2011Do1525

Therefore, the suspension or revocation of a driver's license based on the result of the blood collection investigation conducted without the driver's consent in the course of investigating whether a drunk driving is driving or not is conducted without the court's warrant is in violation of Article 44 (3) of the Road Traffic Act, and is bound to be an illegal disposition

Examining the facts in light of the aforementioned legal principles, the instant disposition was rendered based on the result of the blood collection survey conducted by the police officer without the consent of the Plaintiff himself/herself while the Plaintiff caused a traffic accident while driving and sent back to the hospital without food, on the ground that the instant disposition was unlawful since it violated Article 44(3) of the Road Traffic Act.

Nevertheless, the lower court, as indicated in its reasoning, determined that the instant disposition was lawful solely on the grounds that the evidence recorded in the result of the blood collection survey is admissible as evidence. In so doing, the lower court erred by misapprehending the legal doctrine on the blood collection survey under the Road Traffic Act, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)