A. There was no reasonable ground to recognize the Defendant as driving under the influence of alcohol at the time of mistake of facts.

In addition, the defendant's refusal to take a alcohol measurement because of drinking immediately after the accident, the blood alcohol concentration level higher than that of the defendant, and there was a justifiable reason to refuse to take a alcohol measurement.

Nevertheless, the judgment of the court below which found the Defendant guilty of the facts charged of this case is erroneous.

B. The lower court’s sentence of unreasonable sentencing (fines 6,00,000) is too unreasonable.

2. Determination

A. 1) Determination of mistake of facts is established when a person who has a considerable reason to be recognized as being under the influence of alcohol under subparagraph 2 of Article 107-2 of the former Road Traffic Act (amended by Act No. 7545 of May 31, 2005) fails to comply with a police officer's measurement under Article 41 (2) of the same Act. In order to establish a crime of non-compliance with a measurement of drinking alcohol, the judgment of the court below is that the driver is not always punished for a crime of drinking alcohol at the time of the request for a measurement of drinking alcohol level and that there is a considerable reason to recognize that the driver is under the influence of alcohol level above 0.05%. Furthermore, determination of whether there is a considerable reason to recognize that the person was under the influence of drinking should be made by comprehensively taking into account the objective circumstances, such as the appearance, attitude, and driving behavior of each individual driver at the time of the request for a measurement of drinking, and the change in the body of evidence of the defendant (see, e.g., Supreme Court Decision 2004Do479.).