A. At the time when a police officer called to the police station upon a report of a witness witness around a misunderstanding of facts and requested the defendant to take a drinking test, the defendant expressed his/her intent to move to the police station and take a drinking test. However, the police officer requested the defendant to take a field measurement without accepting the defendant's request, and arrested the defendant as the current criminal in the crime of refusing to take a drinking test.

Since then, the defendant did not take the part in the guard and demanded a measurement of drinking to move the person to the police station. However, the police officer had been delayed, and he was suspected of refusing to drive drinking.

In light of the above circumstances, the police officer's request for the measurement of drinking to the defendant is illegal, and the defendant did not have any intention to refuse the measurement of drinking on the other hand.

B. The punishment sentenced by the lower court (six months of imprisonment, two years of suspended sentence, and one hundred and sixty hours of community service order) is too unreasonable.

2. Determination

A. 1) Determination of the assertion of factual mistake is based on Article 44(1) of the Road Traffic Act, which provides that “No person shall drive a motor vehicle, etc. under the influence of alcohol,” and the latter part of Article 44(2) of the Road Traffic Act, which provides that “A person who drives a motor vehicle, etc. under the influence of alcohol in violation of paragraph (1).”

If there is a considerable reason to designate a person, the pulmonary examination may be conducted to determine whether a driver is under the influence of alcohol.

In such cases, the driver shall comply with the measurement of police officers.

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A request for a measurement based on the latter part of Article 44(2) of the Road Traffic Act has meaning as an investigation procedure to collect evidence on a criminal act of driving under influence (see Supreme Court Decision 2012Do1162, Dec. 13, 2012). Here, a person driving a motor vehicle, etc. under the influence of alcohol was under the influence of alcohol.

reasonable grounds for such determination;

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