도로교통법위반(음주측정거부)
The defendant's appeal is dismissed.
1. The summary of the grounds for appeal (in fact-finding or misunderstanding of legal principles) did not have reasonable grounds to recognize that the defendant was driving under the influence of alcohol, and there was no reason to request a police officer to take a drinking test on the road. The request to take a drinking test at the later place of residence was justifiable because the police officer violated due process due process, on the ground that the request to take a drinking test was made without the consent of the defendant.
2. Determination
(a) Measurement conducted by a police officer to ascertain whether a driver is under the influence of alcohol pursuant to Article 44(2) of the Road Traffic Act shall be understood as a measurement by a drinking measuring instrument. In such cases, a police officer shall have the discretion to a certain extent as to the method of measurement or the frequency of measurement within reasonably necessary limits when measuring whether a police officer is under the influence of alcohol or the degree of alcohol.
Therefore, in order to confirm whether a driver's drinking or the degree of drinking, a police officer may request a driver to put his/her respiratory in the front while presenting a drinking measuring instrument in order to check whether a driver's drinking or the degree of drinking, as a prior procedure, a police officer may also request a driver to conduct a test using a drinking measuring instrument, which is closely related to the
The term "cases of failing to comply with a measurement by a police officer" under Article 148-2 (1) 2 of the Road Traffic Act means cases where it is objectively evident that a driver who has reasonable grounds to recognize that he/she is under the influence of alcohol has no intention to respond to a alcohol test in light of the overall progress of the case.
When a police officer requests a test by drinking-free in the prior stage of a measurement by a drinking measuring instrument to confirm whether a driver has a significant reason to recognize that a police officer is under the influence of alcohol, the test is scheduled to take according to the results of the test, and the driver is required to do so.