A. Although the defendant has refused to take a alcohol level, it is found that the defendant had not been able to drink before driving, and thus, the court below found the facts charged and found the defendant guilty, which affected the conclusion of the judgment by misunderstanding the facts.

B. The sentence imposed by the court below on the defendant (5 million won of fine) is too unreasonable.

2. Determination

A. The crime of violating the Road Traffic Act of Article 148-2 (2) of the former Road Traffic Act is established when a person who has reasonable grounds to recognize that he/she is under the influence of alcohol has failed to comply with a measurement by a police officer under Article 44 (2) of the same Act. In light of the objective circumstances at the time of the request for a measurement of alcohol, in case where there are reasonable grounds to recognize that the driver has driven a motor vehicle under the influence of alcohol, and it is not clear that it is impossible to confirm whether the driver has driven the motor vehicle under the influence of alcohol, by means of an ex post facto measurement of alcohol, unless it is evident that the driver cannot confirm whether the driver has driven the motor vehicle under the influence of alcohol, and if the driver has failed to comply with such request, a police officer may request the driver

(See Supreme Court Decision 200Do6026 Decided August 24, 2001, etc.). Based on the above legal principle, H, which was duly adopted and investigated by the court below, stated that he had been engaged in drinking with the Defendant at an investigative agency where the Defendant was carrying a vehicle while drinking together with the Defendant, had a fact of drinking at a Lriju and Mriju, and Nri, the president of Lriju, was at the police station, who was at the Defendant’s place of drinking with the Defendant, and thus, he was at the Defendant’s son.