[도로교통법위반(음주측정거부)][공2006.12.15.(264),2123]
Whether a person may be punished for failing to comply with the procedure to force a driver to conduct a alcohol test, and for failing to comply with a request for a alcohol test conducted under illegal arrest (negative)
The measurement of drinking conducted solely on the ground that there is a considerable reason to recognize that a driver was a driving under the influence of alcohol even though there is no need for traffic safety and prevention of danger. The provisions of the former Road Traffic Act (amended by Act No. 7545 of May 31, 2005) have meaning as an investigation procedure to collect evidence about a crime of driving under the driving under the influence of alcohol. Since the provisions of the former Road Traffic Act (amended by Act No. 7545 of May 31, 2005) cannot serve as the basis for a compulsory disposition to measure alcohol, in order to make the driver under the above so, the procedure of the Criminal Procedure Act concerning compulsory disposition under investigation is followed, and the compulsory performance without disregarding such procedure constitutes an illegal arrest. In such a case where a request for a measurement of drinking alcohol was made under the above illegal arrest, the illegal arrest for the request for a measurement of drinking alcohol is made in order to collect evidence about the crime of driving under the influence of alcohol, and it is not proper to evaluate the legitimacy of the request individually, and even if the driver's were forced to respond to such a request for drinking.
Articles 41(2) (see current Article 44(2) and 107-2 subparag. 2 (see current Article 150 subparag. 2) of the former Road Traffic Act (amended by Act No. 7545 of May 31, 2005), Article 199(1) of the Criminal Procedure Act
Supreme Court Decision 94Do2283 delivered on October 25, 1994 (Gong1994Ha, 3167) Supreme Court Decision 2005Do6810 Delivered on July 6, 2006 (Gong2006Ha, 1572)
Defendant
Prosecutor
Cheongju District Court Decision 2004No854 delivered on November 19, 2004
The appeal is dismissed.
We examine the grounds of appeal.
Article 41(2) of the former Road Traffic Act (amended by Act No. 7545 of May 31, 2005; hereinafter the same) provides that “When there are reasonable grounds to recognize that a driver has driven a motor vehicle, etc. while under the influence of alcohol in violation of the provisions of paragraph (1), a police officer may measure whether the driver is under the influence of alcohol, and the driver shall comply with such a police officer’s measurement,” and Article 107-2 subparagraph 2 of the former Road Traffic Act provides that “a person who has reasonable grounds to recognize that a person under the influence of alcohol is under the influence of alcohol and fails to comply with a police officer’s measurement under Article 41(2) shall be punished by imprisonment with prison labor for not more than two years or by a fine not exceeding five million won.” In this context, considering that a series of illegal requests for arrest and compulsory measures taken for the purpose of collecting evidence pertaining to measurement of a driver of drinking alcohol which have already been conducted without the need for traffic safety and prevention of danger, it constitutes an unlawful arrest and compulsory measures under the former Road Traffic Act.
After finding the facts as stated in its holding, the court below was justified in holding that the defendant did not comply with the request for measurement of alcohol level on the ground that he did not punish the defendant as a violation of the Road Traffic Act concerning refusal of measurement of alcohol level on the ground that he did not comply with such request for measurement of alcohol level, on the ground that he was unlawfully arrested and detained even though the defendant was requested to accompany a nearby police station to take the measurement of alcohol level to collect evidence on the driving of alcohol at his own house when he operated the stob in this case on the ground of the above legal principles.
The court below did not err in the misapprehension of legal principles as to the establishment of a crime of violating the Road Traffic Act concerning the request for measurement of drinking and the refusal of measurement of drinking, as alleged in the ground of appeal.
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Shin Hyun-chul (Presiding Justice)