The defendant shall be innocent.

A. Error of mistake

The Defendant has no fact of driving under the influence of alcohol with a blood alcohol concentration of 0.05% or more.

B. Unreasonable sentencing

The sentence of the court below is too unreasonable because it is too unreasonable.

2. Determination

A. Summary of the facts charged

On December 21, 2014, the Defendant, while under the influence of alcohol of 051% at around 50: (a) around 50, the Defendant driven a car for Kanman (hereinafter referred to as “the instant car”) at a section of approximately 50 meters from the front of the Gonamdong in Incheon Gyeyang-gu to the front of the Gonam apartment at about 878, the same funeral.

B. Determination

(1) If it is not possible to examine blood or pulmonary samples of a driver immediately after driving and measure the blood alcohol level, then the blood alcohol level at the time of driving can be presumed as a result of calculation by a veterinary method using the so-called dicmark. However, if the empirical rule such as scientific formula is used to identify the existence of the constituent elements of a crime, individual and specific facts constituting the premise for the application of such rule need strict proof. Meanwhile, if it is based on the blood alcohol concentration measured after a certain time from the specific driving point to the point of time by using the dic formula and such concentration is considerably more likely to have an average degree of influence of blood alcohol at the time of driving than 0 if it is necessary to determine that the defendant would not have a reasonable degree of influence on the blood alcohol level after calculating the 5th degree of normal blood alcohol level after driving, and if it is necessary to determine that the defendant would have an average degree of influence on the blood alcohol level at the time of driving, the average degree of influence on the blood alcohol level after driving, and so, it is not necessary to determine whether the above facts are justifiable and reasonable.

(2) According to the records of this case, the Defendant: (a) while driving the instant vehicle on December 21, 2014, caused a traffic accident at around 19:50; (b) as a result of measuring the blood alcohol concentration at around 20: 16; and (c) there was 048% of the result of measuring the blood alcohol concentration at around 20:0; and (b) the Defendant stated that he was drank by 18:00.

The prosecutor calculated the blood alcohol concentration at 19:51% on the basis of the 90-minutes most favorable to the defendant, namely, the blood alcohol concentration at the highest level after drinking, and the 0.08% per hour after reaching the highest level, on the basis that the blood alcohol concentration at 90-minutes more favorable to the defendant, and the 0.08% per hour after reaching the highest level.

(3) In full view of the circumstances such as the possibility of error occurring in the course of specifying the time of the occurrence in the investigation agency, the possibility of the mechanical error in the pulmonary measuring instrument itself, and individual characteristics and other various factors, which affect the reduction of the divers alcohol per hour, it is difficult to readily conclude that the divers’ blood alcohol concentration has exceeded the punishment standard level at the time of the Defendant’s driving, and that there is no evidence to acknowledge otherwise.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, which affected the conclusion of the judgment due to erroneous determination of facts, and it is again decided as follows after pleading.

The summary of the facts charged in this case is the same as the statement in Section 2-A. This constitutes a case where there is no proof of crime as seen in Section 2-b., and thus, a judgment of innocence is rendered to the defendant pursuant to the latter part of Article 325 of the Criminal Procedure Act.

Judges Senior Rotation

Judges South-North;