도로교통법위반(음주운전)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for six months.
1. Summary of grounds for appeal;
A. Error of facts and misapprehension of legal principles (the point of sound driving) have time interval between the time when the Defendant driven and the time when the blood alcohol level was measured, and at the time of the respiratory measurement, the blood alcohol level was increased. Therefore, the evidence submitted by the prosecutor alone cannot be readily concluded that the blood alcohol level was above 0.05% when the Defendant drives.
Nevertheless, the lower court found the Defendant guilty of this part of the facts charged, which erred by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.
B. The lower court’s sentence of unreasonable sentencing (six months of imprisonment) is too unreasonable.
2. In the instant case, the ex officio determination prosecutor filed an application with the court for permission to amend the Bill of Indictment, which changed the date and time of the instant facts charged to “as of March 29, 2016:3:24,” and “as of March 29, 2016:00,” the lower court’s judgment could no longer be maintained as it changed to the subject of the adjudication upon permission by the court.
However, despite the above reasons for ex officio destruction, the defendant's assertion of misunderstanding of facts and misapprehension of legal principles is still subject to the judgment of this court.
3. Determination
A. Even if there is an interval between the time point of drinking alcohol driving and the point of measuring the blood alcohol level, and the time appears to increase the blood alcohol level, such circumstance alone cannot be deemed insufficient to prove that the blood alcohol level at the time of actual driving exceeds the penalty standard.
In such cases, the issue of whether the person had been above the standard value of punishment even at the time of driving shall be determined by comprehensively taking into account various circumstances acknowledged by evidence, such as the time interval between the driving and the measurement, the difference between the measured blood alcohol concentration and the standard value of punishment, the continuous time and drinking, the driver's behavior level at the time of the measurement, the situation of the accident and the circumstance.