[2] In the event that a pulmonary test under Article 44(2) of the former Road Traffic Act was conducted for a driver suspected of drunk driving in the course of investigating a drunk driving, but there are objective and reasonable grounds to recognize that a pulmonary test is erroneous, whether it is permissible to re-intake a breath test by means of blood collection (affirmative with qualification), and where the legality of blood collection is recognized

[2] In a case where the respiratory test is conducted under Article 44(2) of the former Road Traffic Act with respect to a driver suspected of drunk driving in the course of an investigation into a drunk driving, as long as the scientific and neutral pulmonary test value derived therefrom, the necessity to take a breath test again becomes dead, and thus, it is not, in principle, permissible to take a breath test unless the driver objects to the breath test. However, if the driver causes an accident, the breath degree revealed in the driver’s attitude and appearance, driving behavior, etc., the degree and degree of damage if the driver causes the accident, and the situation at the time of the breath test, etc., such breath test cannot be said to have achieved the purpose of investigation solely on the basis of the breath test conducted at any time, or there is no objective and reasonable reason to recognize that the breath test was conducted for the purpose of the breath test, and thus, it cannot be said that the driver’s voluntary consent to the breath test is unlawful.

1. Article 44(2) of the former Road Traffic Act (amended by Act No. 12917, Dec. 30, 2014; hereinafter the same shall apply) provides that "police officers (excluding autonomous police officers; hereinafter the same shall apply) may, if deemed necessary to ensure the safety of traffic and prevent danger, or if there are reasonable grounds to recognize that they have driven a motor vehicle under the influence of alcohol by violating paragraph (1), pulmonary examination may be conducted." Paragraph (3) of the same Article provides that "the driver shall comply with a pulmonary examination." Paragraph (2) of the same Article provides that "this provision shall apply to drivers who are dissatisfied with the results of a measurement under paragraph (2) by means of blood collection, etc. with the consent of 10 to 20 years old Road Traffic Act, and that "this provision is also applicable only to those who have considerable reasons to recognize that they have been under the influence of alcohol and that they have an opportunity to take pulmonary measurement of blood so that they may not comply with the procedures of 20 years or less than 50 million won."

Meanwhile, an investigation agency may conduct a necessary investigation to achieve the purpose of the investigation (see the main sentence of Article 199(1) of the Criminal Procedure Act). However, an investigation must be conducted in accordance with the method and procedure deemed reasonable by social norms within the minimum necessary to achieve the purpose (see Supreme Court Decision 98Do329, Dec. 7, 199). In a case where a respiratory test is conducted with respect to a driver suspected of drunk driving in the course of the investigation into a drunk driving under Article 44(2) of the former Road Traffic Act, insofar as the scientific and neutral pulmonology is derived, the necessity for a pulmonary test again takes place without the driver’s objection. Thus, it is not permitted in principle to conduct a pulmonary test again unless the driver’s objection is raised. However, since the driver’s attitude and appearance revealed in the driver’s attitude, etc., the driver’s voluntary pulmonary test cannot be deemed unlawful if it is acknowledged that there is no objective and reasonable reason to recognize that the driver’s consent was obtained through an objective and rational pulmonary test of blood samples at the time.

2. According to the evidence duly adopted by the lower court, the Defendant: (a) 00:05 on June 2, 2013; (b) 200:05; (c) 1 lane on the road where the instant accident occurred; (d) 3:00; (c) 4:00; (d) 4:00; (c) 2:00; (d) 2:00; (d) 3:00; and (d) 3:00; (d) 4:0; (e) 4:0; (e) 2:0:0; and (e) 3:0:0; (e) 3:00; (e) 4:0:0; (e) 4:00; (e) 4:00; (e) 4:00; and (e) 4:00; and (e) 3:00; and (e) 3:00; and (e) 4:0; (e) 3:0:0; and (e) 2; (e) 2; (e) 3) 3; (f) 4;

Examining these facts in light of the legal principles as seen earlier, although the Defendant’s attitude or appearance, etc. was measured in figures short of the punishment standard upon the Defendant’s pulmonary test, it was clearly revealed that the Defendant had been under the influence of alcohol to the point of view that it would be difficult to walk normally in light of the Defendant’s attitude or appearance, etc., and the Defendant immediately transferred beyond the central line to the port, and immediately left after the Defendant paid an accident requiring one-lane, and sent an abnormal driving behavior, such as stopping an accident involving several other damaged vehicles beyond the central line, and the victims suffered from the instant accident reached 10 persons, among them, waiting for the police station, and certain victims who observed the Defendant’s pulmonary test were unable to believe the result of the pulmonary test, and thus, there was no objective and reasonable circumstance to deem that there was an error in the Defendant’s voluntary consent to the Defendant’s pulmonary test in view of the fact that the Defendant’s voluntary consent was obtained from the police station in charge of collecting blood from the police officer’s blood from the point of view of view that the Defendant’s consent was unlawful.

3. Nevertheless, under the interpretation of Article 44(2) and (3) of the former Road Traffic Act, the court below determined that the blood acquired at the police officer’s request that the driver did not object to the breath test and that the blood acquired at the police officer’s request and the blood alcohol verification statement, the driver’s exposure report, the investigation report (blood appraisal report, etc.), and the investigation report collected without complying with the due process, shall not be admissible as evidence or secondary evidence of illegally collected evidence. In so determining, the court below erred by misapprehending the legal principles on the admissibility of evidence of the results of the breath test, Article 44(2) and (3) of the former Road Traffic Act, and the result of the blood measurement, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. 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 Jo Hee-de (Presiding Justice)