A. misunderstanding of facts or misunderstanding of legal principles 0.05% of the Defendant’s blood alcohol concentration is not measured immediately after the Defendant driven the vehicle, but at least one hour after the driving time of the vehicle, according to the reverse 0.047% of the blood test by blood test method at the time of driving. There is no proof of the time of drinking, drinking, the amount of alcohol, the Defendant’s body weight, and the physical strength. Since the Defendant refused the Defendant’s request for re-measurement due to respiratory without any reasonable reason, it cannot be deemed that the Defendant’s blood alcohol concentration was 0.05% or more of the punishment standard due to drunk driving under the former Road Traffic Act (amended by Act No. 16037, Dec. 24, 2018).

Nevertheless, the judgment of the court below which found the defendant guilty of the facts charged of this case is erroneous in misapprehension of legal principles.

B. The lower court’s sentence of unreasonable sentencing (five months of imprisonment and two years of suspended execution, probation, and compliance driving class) is too unreasonable.

2. Determination

A. With respect to the assertion of misunderstanding of facts or misapprehension of the legal principles on the operation under the influence of alcohol, unless it is possible to measure the blood alcohol level by examining the driver’s blood, respiratorys, etc. immediately after the operation, the blood alcohol level at the time of the operation can be presumed by adding the blood alcohol concentration to the blood alcohol concentration at the time of the operation, which was measured after a certain time from the specific driving point of time, based on the reverse acid formula, using the so-called straightmark formula.

The degree of normal drinking, physical constitution, drinking speed, degree of physical activities after drinking, etc. of a person under examination.