도로교통법위반(음주운전)등
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 4,000,000.
The above fine shall not be paid by the defendant.
1. Summary of grounds for appeal;
A. As to the conjunctive charges of violation of road traffic law among the facts charged in the instant case by misunderstanding of facts and misapprehension of legal principles, the Defendant: (a) had the alcohol concentration in the blood measured at the time nine hours and twenty (20) minutes after driving of the instant case; (b) 0.042% near 0.05%; and (c) the alcohol concentration in the blood alcohol level at the time of the rise calculated in accordance with the aforementioned dmark formula is 01:30% below 0.109% at the end of the rise.
The defendant seems to have driven one half of a week while driving the same, and the traffic accident of this case by the signal violation seems to have been affected by drinking.
Therefore, the Defendant is recognized to have driven at least 0.05% alcohol concentration in blood.
B. The sentence of the lower court’s improper sentencing (2.5 million won in penalty) is too unfluent and unfair.
2. Comprehensively taking account of the following legal principles as to the assertion of mistake of facts and misapprehension of legal principles and the following circumstances acknowledged by the evidence duly admitted and examined by the court below, the defendant was under the influence of alcohol level of not less than 0.05% at the time of driving of the instant case.
Therefore, prosecutor's mistake of facts and misapprehension of legal principles are justified.
(1) Where the distance between the point of time and the point of time between the point of time when the alcohol concentration in the blood is measured and the point of time seems to rise the alcohol concentration in the blood.
Even if such circumstance alone makes it impossible to prove that the alcohol concentration at the time of actual operation exceeds the standard level of punishment.
shall not be deemed to exist.
In such a case, the punishment level was higher than the standard level at the time of driving.
Whether it can be seen or not shall be determined based on evidence, such as the time interval between driving and measurement, the difference between the value of alcohol concentration and the standard value of punishment in measured blood, the duration and quantity of drinking continued, the driver's behavior aspects at the time of the crackdown and measurement, and the situation of the accident if there is a traffic accident.