[도로교통법위반(음주측정거부)][공2002.8.1.(159),1737]
[1] The elements for the establishment of the crime of non-compliance with the measurement of alcohol under Article 107-2 Item 2 and Article 41 (2) of the Road Traffic Act, and the standard for determining whether there are reasonable grounds to recognize that a person was a drunk driver
[2] In a case where a drinking-free test was conducted in a drinking-free test, whether it can be deemed that there is a reasonable ground to recognize that a drinking-free test was conducted immediately (negative)
[1] The crime of non-compliance with the measurement of alcohol under Article 107-2 subparagraph 2 of the Road Traffic Act is established when a person who has a reasonable ground to be recognized as being under the influence of alcohol fails to comply with the measurement by a police officer under Article 41 (2) of the same Act. The "under the influence of alcohol" in this context refers to a person under the influence of alcohol at least 0.05%, which is punished as the crime of drunk driving. Thus, in order to establish the crime of non-compliance with the measurement of alcohol, the driver must not necessarily be in the state above 0.05% of the blood alcohol concentration at the time of the request for the measurement of alcohol, but at least there must be reasonable grounds to recognize that the driver is in the state above 0.05% of the blood alcohol concentration at the time of the request for the measurement of alcohol, and further whether there are reasonable grounds to recognize that the person is under the influence of alcohol should be determined by comprehensively considering the objective circumstances such as the appearance
[2] Even though a drinking-free measuring instrument used before the demand for a breath test was made with a sobreath test used before the demand for a sobreath test, considering that the sobreath test currently used is reactioned with a blood alcohol concentration of 0.02%, it cannot be deemed that there are reasonable grounds to recognize that the driver is in a sobreath test with a blood alcohol concentration of 0.05% or more, and it should be determined whether there are reasonable grounds to recognize that the driver is in a sobreath test in light of the objective circumstances such as the appearance, attitudes, and driving behavior of the driver.
[1] Articles 41(2) and 107-2 subparag. 2 of the Road Traffic Act / [2] Article 41(2) of the Road Traffic Act
[1] Supreme Court Decision 99Do2899 delivered on December 28, 1999 (Gong2000Sang, 427) Supreme Court Decision 2000Do6026 delivered on August 24, 2001 (Gong2001Ha, 2141)
Defendant
Prosecutor
Cheongju District Court Decision 2001No457 delivered on October 26, 2001
The appeal is dismissed.
1. The crime of non-compliance with the measurement of alcohol under subparagraph 2 of Article 107-2 of the Road Traffic Act is established when a person who has a reasonable ground to be recognized as being under the influence of alcohol fails to comply with the measurement by a police officer under Article 41 (2) of the same Act. The term "under the influence of alcohol" in this context refers to the state of non-compliance with the measurement of alcohol above 0.05% of the blood alcohol by a person under the influence of alcohol. Thus, in order to establish the crime of non-compliance with the measurement of alcohol, the driver must not necessarily be in the state of blood alcohol concentration above 0.05% at the time of the request for the measurement of alcohol, but there must be reasonable grounds to recognize that the driver is in the state of alcohol above 0.05%, and further, whether there are reasonable grounds to recognize that the person is under the influence of alcohol should be determined by comprehensively considering the objective circumstances such as his appearance, attitude, and driving behavior at each driver at the time of the request for the measurement of alcohol (see Supreme Court Decision 29Do989, 26004.20.
Therefore, even though the so-called so-called "breath test" used prior to the request for a breath test was made, considering the fact that the so-called "breath test" currently used is reactioned from the blood alcohol concentration of 0.02%, it cannot be deemed that there is a reasonable ground to recognize that the driver is in a so-called state of alcohol with a blood alcohol concentration of 0.05% or more, and in addition, it should be determined whether there are reasonable grounds to recognize that the driver is in a so-called state of alcohol by taking into account the objective circumstances such as the appearance, attitude, and behavior of the driver.
According to the records, the defendant was found to have failed to comply with a request for a drinking test by a police officer for a drinking test at around 22:48 on the day of the instant case, even if the drinking reaction was conducted by the daily drinking-free test during the drinking-free test of the drinking-free driving process, but the defendant argued that he was breath during the drinking-free test between 14:15:0 on the day, and that he was breath between 14:200 and 15:0 on the day, the crackdown police officers argued that he was breath of alcohol during the drinking-free test, and that he was breath in the issuance of a drinking-free test refusal test, and that the defendant's oral statement about the drinking-free driver was stated that the defendant's speech, walking condition, and blood were all normal at the time of the request for a drinking-free test, and it is difficult to deem that there was a considerable reason to acknowledge that the defendant was under the influence of alcohol at the time of the request for a drinking test, and there is no violation of law as alleged in the same purport.
2. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Son Ji-yol (Presiding Justice)