Residence

Reference domicile

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

Although the Defendant was unable to comply with the pulmonary measuring instrument due to disorder in the function of the pulmonary measuring instrument, the Defendant demanded a measurement by blood collecting, the police officer in charge impliedly looked at the Defendant’s demand, so there was no fact that the Defendant refused the breath test.

2. Determination

A. Summary of the facts charged in this case

피고인은 2015 . 4 . 24 . 03 : 30경 ○○시 의료원 앞 도로에서부터 같은 시 ○○동 433 앞 도로까지 약 1 . 5km 구간에서 술을 마신 상태로 ○○허 OOOO호 쏘나타 승 용차를 운전하였다는 이유로 ○○ 경찰서 ○○지구대 소속 경위 이00으로부터 피고인 에게서 술 냄새가 나고 눈이 빨갛게 충혈되어 있는 등 술에 취한 상태에서 운전하였다 . 고 인정할 만한 상당한 이유가 있어 약 20분 동안 3회에 걸쳐 음주측정기에 입김을 불 어 넣는 방법으로 음주측정에 응할 것을 요구받았다 .

그럼에도 불구하고 피고인은 음주측정기에 입김을 불어넣는 시늉만하고 이를 회피하여 정당한 사유 없이 경찰공무원의 음주측정 요구에 응하지 아니하였다 .

B. The judgment of the court below

The lower court found the Defendant guilty of the instant charges following the adoption of the 00th police officer’s legal statement and the report on detection of a host driver as evidence of guilt.

C. Judgment of the court below

1) A police officer cannot be deemed to have a duty to inform a driver who fails to comply with a measurement method by blood collection without any special reason and to ask the driver whether or not to choose the method. However, under the interpretation of Article 44(2) and (3) of the Road Traffic Act, where it is difficult or particularly difficult for a driver to measure the respiratory for reasons such as a driver's physical disorder, etc., or where a driver requests a measurement by blood collection because he/she has failed to comply with a measurement by blood collection, he/she shall omit the procedure for the measurement by the pulmonology and proceed to the measurement by blood collection. In this case, the act of failing to comply with a measurement by the pulmonology cannot be deemed to be a non-compliance with the pulmonology (see Supreme Court Decision 2002Do4220, Oct. 25, 2002).

2) The following circumstances acknowledged by the evidence duly adopted and examined by the lower court, i.e., ① the Defendant: around 01 on April 24, 2015; around 01:50, while driving a vehicle on the road at ○○○○○ Dong 433, caused an accident that shocks the rear-down of the vehicle parked on the right side (see, e.g., e., 20 pages of investigation records); ② the Defendant voluntarily present at the police box (see, e.g., 35 pages of trial records); ③ the police officer in charge requested the Defendant to voluntarily respond to the pulmonology; and the Defendant expressed his intention to respond to the pulmonology (see, e.g., Supreme Court records No. 33 pages of trial records); ④ the Defendant did not recognize that the Defendant was unable to have pulmonary measuring the pulmonary function of the vehicle; and (g) the Defendant did not have any objective opportunity to view that the pulmonary function of the vehicle was measured by blood sampling, and (see, see, e. 34) the lower police officer’s.

D. Therefore, the defendant's above assertion is justified.

3. Conclusion

Therefore, the appeal by the defendant is reasonable, and the decision of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the appeal by the defendant is again decided as follows.

[Judgment to be used again]

The summary of the facts charged in this case is the same as the statement 2-A. This constitutes a case where there is no proof of facts constituting a crime for the same reason as the statement 2-c. of Article 2-3, and thus, it is so decided as per Disposition by the latter part of Article 325 of the Criminal Procedure Act, and by publicly announcing the summary of the judgment in accordance with Article 58(2) of the Criminal Act (it is pointed out that the police officer in charge has a pulmonology to confirm the degree of sensitiveness of the pulmonology at the court below, but the above pulmonology was another model other than the model used at the time of the breath measurement of this case, so it cannot be proven as evidence of guilt because it lacks "in relation to the facts charged."

Judges Kang Jong-chul

Judges Hak-chan

3. 27L points out that the Defendant’s pulmonary activity exceeds the Defendant’s quantity of air required for pulmonary measuring instruments, but is set out in the opinion.

The pulmonary measurement was conducted on the basis of the pulmonary assessment because the pulmonary assessment was not based on the value at the time the pulmonary assessment was conducted.

It is inappropriate to determine whether a defendant has an intention to refuse measurement.

1. Even if the numerical value is less than 376L, a crime of violation of the Road Traffic Act (e.g., refusal of measurement) may be established, and in opposition, the Road Traffic Act may be established.

There may be no violation of the law (refusing to take a drunk test). The function of the defendant at the time of the pulmonary measurement as well as the evidence of the above opinion is abolished.

880,000,000 if there is a disability that does not meet the minimum amount of smoking to the degree of reaction by the respiratory tester;

And whether the defendant had the intention to refuse to take a drinking test, ① how the drinking test was conducted, ② the defendant

As a result of pulmonology in the respiratory tester, the defendant was given minimum cooperation such as the display of the pulmonary message; and 3.

Whether or not there was a fact requiring a measurement by blood collection, when such demand was made, and ④ in the past to the defendant

Since there are many kinds of records of drinking driving, he/she may avoid the respiratory measurement by using the remaining deceptive means that concerns the aggravated punishment due to such concerns.

It should be determined by comprehensively examining whether there was no possibility that the defendant had committed an accident. In this case, 1 The defendant was involved in an accident.

For the first column, the Defendant voluntarily attended the police box after occurrence, and ② for the first column the Defendant’s repulmonary pulmonary pulmonary in a respiratory tester.

A police officer in charge of taking up the balon (see, e.g., 34 pages of the trial record), and 3 the Defendant did not take the balon test.

A measurement by blood gathering has been required, and such demand shall be from the time of the first measurement requirement set forth in the Transport Control Guidelines.

30 minutes before expiration of the trial (see, e.g., Supreme Court records No. 33 of the trial record), and 4 The defendant has no record of driving under the influence of alcohol.

In light of the fact that the defendant was the first offender, it was judged that the defendant had no intention to refuse the measurement of drinking, and the opinion submitted by the defendant.

It is clear that it is not judged whether there is an intention to refuse to take a drinking test on the basis of only the basis of the decision.