A. According to the misunderstanding of the facts and legal principles (as to the violation of the Road Traffic Act (divated driving), the traffic control guidelines amended on April 11, 2017 stipulate a driver’s duty to notify the driver that the driver may re-measurement the blood alcohol concentration by means of blood collection when a police officer renders a measurement of drinking.

However, at the time of the instant case, the controlling police officer did not notify the Defendant of this purport and conducted a drinking test only by the method of respiratory investigation.

Thus, the above alcohol measurement by a traffic control police officer is illegal in violation of the procedure set forth in the "Traffic Control Guidelines", and accordingly, the result is not admissible as evidence of unlawful collection, and it cannot be considered as evidence of guilt.

Nevertheless, the court below erred by misapprehending the legal principles on the crime of drinking driving and by misapprehending the legal principles on the crime of drinking driving, or by violating the rules of law, which affected the conclusion of the judgment.

B. The sentence sentenced by the lower court to the Defendant (an amount of two million won) is too unreasonable.

2. Determination

A. Determination of the misapprehension of the legal doctrine and mistake of facts 1) The Defendant’s defense counsel was obligated to inform the driver of the method of measurement by blood collection when the police officer measured drinking by amending the “Traffic Control Guidelines” on April 11, 2017 with the grounds of appeal in this part.

Article 38(4) of the Road Traffic Control Guidelines (amended by April 11, 2017, “Traffic Control Guidelines” did not be submitted on the grounds that it is difficult to obtain the same. Article 38(4) of the same Act provides that “When a driver’s report on the detection of a driver with alcohol level exceeding 0.05% from blood alcohol level as a result of the measurement of alcohol level with respect to the driver, the measuring person must be notified that there was a measuring method based on the measurement and the collection of blood.”