A. At the time of misunderstanding of facts or misapprehension of legal principles, the police officer, without a legitimate warrant, requested only a measurement by a drinking reduction in the house in which the defendant is using the house. Thus, the police officer's request for a measurement by a drinking measuring instrument outside the house cannot be deemed legitimate. Then, the police officer's request for a measurement by a drinking measuring instrument outside the house constitutes an illegal request for a measurement

Therefore, since the defendant did not have a duty to comply with the above request for measurement of drinking alcohol, the defendant cannot be punished as a crime of refusing to measure drinking alcohol.

2) In addition, the Defendant did not drink at the time of the instant case, and thus, the Defendant was driving a motor vehicle under the influence of alcohol pursuant to Article 44(2) of the Road Traffic Act.

not falling under “if there is a reasonable reason to determine the person.”

3) Nevertheless, the lower court erred by misapprehending the facts charged or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

B. The sentence of the lower court that is unfair in sentencing (an amount of five million won) is too unreasonable.

2. Determination

A. Judgment on the assertion, such as mistake of fact, etc. 1) Police officers recognized that it is necessary to ensure the safety of traffic and prevent danger, or a driver was driving a motor vehicle while under the influence of alcohol.

Unless it is clear that there is a reasonable ground to determine a person and it is necessary to confirm whether a driver's drinking is a driver's drinking, it is possible to request the driver to take a drinking test pursuant to Article 44 (2) of the Road Traffic Act, and if the driver fails to comply with the request, the crime of refusing to take a drinking test is established pursuant to Article 148-2 (1) 2 of the same Act (see, e.g., Supreme Court Decisions 201Do4328, Feb. 9, 201; 200Do6026, Aug. 24, 2001). In addition, the driver driven a motor vehicle under the influence of alcohol.