1. Based on its stated reasoning, the lower court reversed the first instance judgment convicting the Defendant of the instant facts charged and sentenced the Defendant not guilty, on the grounds that it is difficult to view that it was beyond 0.05% and above 0.09% of the blood alcohol level at the time of the termination of driving.

2. However, the lower court’s determination is difficult to accept for the following reasons.

A. In a situation where it is difficult to determine whether the blood alcohol level at the time of driving under the influence of alcohol is the rise of the blood alcohol level or the summer time, even if the blood alcohol level measured at the time when the driving is completed after a considerable time has passed, it cannot be readily concluded that the blood alcohol level at the time of actual driving exceeded the punishment standard level. Although there are differences for each individual, it is generally known that the blood alcohol concentration at the time of operation exceeds the punishment standard level. While the blood alcohol concentration at the time of actual driving, it is possible to lower the blood alcohol concentration at the time of operation than the blood alcohol concentration at the time of actual measurement.

However, even if there exists an interval between the time of driving and the time of measuring the blood alcohol concentration, and if it appears to increase the blood alcohol concentration at that time, such circumstance alone alone cannot be deemed insufficient to prove that the blood alcohol concentration at the time of actual driving exceeds the punishment threshold. In such cases, whether it can be deemed that the blood alcohol concentration at the time of actual driving was above the punishment threshold shall be determined reasonably in accordance with logical and empirical rules, comprehensively taking into account various circumstances recognized by evidence, such as the time difference between the driving and measurement, the difference between the measured blood alcohol concentration and the punishment threshold, the number of the measured blood alcohol concentration at the time of driving and the measured blood alcohol concentration, the number of hours continuing drinking and the degree of behavior of the driver at the time of measurement, the situation of the accident, and the circumstances (see Supreme Court Decision 2013Do6285, Oct. 24, 2013).

B. According to evidence duly admitted by the court below, the Defendant driven the instant vehicle from around 21:00 on November 10, 201 to around 03:04 on November 11, 201, by not later than 04:00 on which the accident reported after drinking six hours. The blood alcohol concentration measured by the Defendant at around 04:56 on the same day as the last alcohol level 0.05% on which 112 minutes elapse from the time of drinking, is considerably above 0.09%, which is the punishment standard. Although it is difficult for the Defendant to conclude that he/she had a very high blood alcohol concentration among 30 minutes to 90 minutes after drinking, it is probable to view that he/she had a very high alcohol concentration among 10 minutes after drinking alcohol level at the time of the instant accident, on the ground that he/she had a high alcohol level from 10 minutes to 10 minutes after drinking alcohol level at the time of the instant accident. However, according to the police and the Defendant’s statement at the statutory point of 10.

Examining these facts in light of the legal principles as seen earlier, it is reasonable to deem that the Defendant was under the influence of alcohol at least 0.05% alcohol level at the time of driving the instant vehicle.

C. Nevertheless, the court below found the Defendant not guilty on the grounds stated in its reasoning that it was difficult to view the Defendant’s blood alcohol level above 0.05% at the time of driving, and thus, it erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on the proof of blood alcohol level in driving under influence, thereby affecting the conclusion of the judgment

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 Shin (Presiding Justice)