[도로교통법위반(음주측정거부)][미간행]
[1] The elements for the establishment of a crime of non-compliance with a drinking test and the standard for determining whether there are reasonable grounds to recognize a state of drinking
[2] The case holding that since a crime of non-compliance with a measurement of alcohol is established on the ground that there is a reasonable ground to believe that a person was under the influence of alcohol at the time of a request for a measurement of alcohol, the crime of non-compliance with a measurement of alcohol is not affected by the establishment of a crime of non-compliance with a measurement of alcohol, even if the person demanded a measurement of alcohol by blood gathering methods and
[1] Articles 41(2) and 107-2 subparag. 2 of the Road Traffic Act / [2] Articles 41(2) and 107-2 subparag. 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) Supreme Court Decision 2001Do5987 Delivered on June 14, 2002 (Gong2002Ha, 1737) Supreme Court Decision 2002Do6632 Delivered on January 24, 2003 (Gong2003Sang, 761)
Defendant
Defendant
Attorney Yellow-soo
High Court for Armed Forces Decision 2003No435 Decided July 13, 2004
The appeal is dismissed.
Each ground for appeal by the defendant and public defender shall be examined together.
Article 107-2 Item 2 of the Road Traffic Act is established when a person who has reasonable grounds to be recognized as being under the influence of alcohol fails to comply with a police officer's measurement under Article 41 (2) of the same Act. In order to establish the crime of non-compliance with a measurement of alcohol, a driver does not necessarily have to be in a state of not less than 0.05% of blood alcohol level, and there are reasonable grounds to recognize that a driver is in a state of not less than 0.05% of blood alcohol level at the time of the request for a measurement of alcohol level. Furthermore, whether there are reasonable grounds to recognize that a person is under the influence of alcohol should be determined for each individual driver at the time of the request for a measurement of alcohol level by taking into account the objective circumstances such as his appearance, attitude, and behavior of driving (see Supreme Court Decision 2002Do632, Jan. 24, 2003).
In full view of the employed evidence, the court below found that the defendant did not respond to the request for alcohol alcohol measurement as stated in its decision, and further found that the defendant was in a state of drinking alcohol level of 0.05% or more at the time of receiving the request for alcohol alcohol measurement from the mobile care, and that the defendant was in a state of drinking alcohol test at the time of receiving the request for alcohol alcohol measurement, and that the defendant was in a state of drinking alcohol level of 0.05% or more at the time of receiving the request for alcohol alcohol measurement, and that he was in a state of drinking alcohol level of 5% or more at the time of receiving the request for alcohol measurement, and that the defendant's blood density measurement of blood consumption level of 5% or more at the time of receiving the request for alcohol alcohol measurement, and that the defendant did not comply with the above legal principles and records, as long as the defendant did not have any influence on the blood alcohol level measurement method and the record, the court below found the defendant's ground of appeal to be guilty.
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Park Jae-chul (Presiding Justice)