도로교통법위반(음주측정거부)
The prosecutor's appeal is dismissed.
1. The summary of the grounds for appeal was legitimately carried out by a police box to the defendant.
After all, at the above location, the defendant demanded to take a breath test by the breath measuring instrument three times, and the defendant refused to take a breath test, so there is a crime of refusal
The court below acquitted a police officer of the facts charged in this case on the ground that a police officer's request for sobreath measurement was made in an unlawful state and it cannot be deemed a legitimate official duty, and thus it cannot be recognized as a crime of refusal of sobreath measurement.
2. Determination
A. Article 44(2) of the Road Traffic Act provides that “When deemed necessary for the safety of traffic and the prevention of danger and there exist reasonable grounds to recognize that a driver has driven a motor vehicle, etc. while under the influence of alcohol in violation of the provisions of paragraph (1), police officers may take a pulmonary test as to whether the driver is under the influence of alcohol. In this case, the driver shall comply with a breath test by a police officer.” Article 148-2(1)2 of the Road Traffic Act provides that “a person who has reasonable grounds to recognize that a person is under the influence of alcohol and fails to comply with a breath test by a police officer pursuant to the provisions of Article 44(2) shall be punished by imprisonment with prison labor for not less than one year but not more than three years or by
In this context, even though there is no need for traffic safety and prevention of danger, the measurement of alcohol conducted solely on the ground that there is a considerable reason to recognize that a driver was a driving under the influence of alcohol has the meaning as an investigation procedure to collect evidence of a criminal act of driving under the influence of alcohol. Since the provisions of the Road Traffic Act cannot serve as the basis for a compulsory disposition for the measurement of alcohol, it shall be subject to the compulsory disposition under investigation in order to force the driver concerned for the aforementioned measurement of alcohol.