As the defendant inevitably collected blood at a hospital with the consent of the defendant's child in an unknown state, the court below rejected the admissibility of evidence based on the blood collection of this case, and found the defendant not guilty of the facts charged of this case by misunderstanding the facts or misunderstanding the legal principles, which affected the conclusion of the judgment, on the ground that there is insufficient time or legal grounds to request a warrant of blood collection.

2. Summary of the facts charged in this case

On March 5, 2011, at around 23:45, the Defendant driven a two-wheeled vehicle (vehicle number omitted) with a distance equivalent to about 2 km from the front road to the front road of the Guro-dong fire station in Guro-gu Seoul Metropolitan Government to the front road of the e-mail (road number omitted) in the city of light.

3. The judgment of the court below

In regard to this, the court below found the defendant not guilty on the ground that there is no other evidence to reinforce the above evidence in addition to the confession of the defendant, since the defendant led to the non-indicted defendant's consent to collect blood from the defendant, there was no consent from the defendant, and there was no prior or ex post facto consent from the investigation agency, and there was no warrant issued even after the investigation agency received a warrant. Thus, the inquiry about the request for appraisal on blood obtained from such blood collection cannot be used as evidence in accordance with Article 308-2 of the Criminal Procedure Act, and other evidence based on this is the same.

4. Judgment of the court below

(a) Facts of recognition;

According to the records, from around 21:00 to 23:30 on March 5, 201, 201, the Defendant dices friendly and Chinese alcohol at a restaurant around the Gu-dong Fire Station located in Guro-gu Seoul, Guro-gu, Seoul, and 23:45 on the same day, the Defendant caused a traffic accident that sees the aftermath of the vehicle on the front side of the luminous-si (vehicle number omitted), while driving a luminous-do-dong vehicle at around 23:45 on the same day, and then lost consciousness, was sent to the nearby Ma○○ Hospital by a nearby 119 emergency vehicle. Police officers at the hospital had the Defendant take the blood of the Defendant without consciousness after obtaining the consent of the Nonindicted Party, but did not have a pre-issuance or ex post facto warrant issued by the court, and the National Science Investigation Research Institute can recognize the fact that the Defendant’s blood alcohol concentration was measured by 0.21% of the blood alcohol concentration of the Defendant.

B. Determination

1) In principle, evidence collected in violation of the procedures prescribed by the Constitution and the Criminal Procedure Act may not be used as evidence of guilt. However, when comprehensively and comprehensively examining all circumstances related to a procedural violation committed by an investigation agency during the process of collecting evidence, it does not constitute a case where a procedural violation by an investigation agency infringes on the substantive contents of due process, and rather, the admissibility of evidence may be used as evidence of conviction only in exceptional cases where the Constitution and the Criminal Procedure Act establish a procedural provision on criminal procedure to ensure harmony between the principles of due process and substantial truth and to realize justice in criminal justice.

2) If necessary for criminal investigation, a judicial police officer may seize, search or inspect evidence by a warrant issued by a judge upon request by a public prosecutor (Article 215(2)), and a judicial police officer may, if necessary, seize, search or inspect a suspect in accordance with the provisions of Article 200-2, 200-3, 201 or 212, without a warrant at the site of arrest, but if it is necessary to continue to seize seized articles, the warrant shall be requested without delay within 48 hours from arrest (Articles 216(1)2 and 217(2) of the Criminal Procedure Act). If it is impossible for a family member to obtain a warrant by a judge because of urgency at the scene of an offense or immediately after the offense, seizure, search or verification may be conducted without delay, but if it is difficult to obtain a warrant ex post facto consent from a public prosecutor to collect blood from an investigative agency or appraisal of a criminal defendant without consent to obtain a warrant under Article 27(1) of the Criminal Procedure Act, the Criminal Procedure Act shall also be deemed to have been issued without delay.

3) Therefore, since the written request for appraisal of this case obtained based on the blood of the defendant illegally collected cannot be deemed as an exceptional case to the extent that the admissibility of evidence is recognized, it cannot be recognized, and the same applies to other evidence based on this, and as long as there is no other evidence to reinforce this in addition to the confession of the defendant, this cannot be deemed as evidence of guilt. Thus, there is no error of misapprehending the legal principles of the court below which acquitted the defendant, or of misconception of facts, by deeming that there is no evidence to the same purport (On the other hand, the prosecutor asserts to the effect that there is an error of law in the trial of the court below

5. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Jin-hee (Presiding Judge)