Suwon-si residential Suwon-si

Busan Central District of Registry

On 28. 23:30 on 28. 2013, the Defendant was under the influence of alcohol of about 3 meters in the Young-si ** 0 on 0. 141% in the blood alcohol concentration before singing, * fishing** * driving of the passenger vehicle.

2. Summary of the defendant and his defense counsel's assertion

The arrest of the defendant in the act of committing an offense against the defendant is an illegal arrest without satisfying the requirements. The result of a drinking test conducted in the state of such capture constitutes illegally collected evidence, and thus, the defendant is not guilty, since there is no other evidence to prove the facts charged, and the defendant is not guilty.

3. Determination

Article 211 of the Criminal Procedure Act provides that "the latter part of the commission of a crime" refers to cases where it is clear from the standpoint of the person who arrests him/her that he/she is an offender immediately after the commission of the crime. As such, Article 211 of the Criminal Procedure Act provides that "the latter part of the crime is deemed to be an offender in the act of committing the crime" in Article 211 (1) and Article 211 of the same Act provides that "the latter part of the crime is deemed to be an offender in the act of committing the crime and Article 211 (2) separately provides for "the latter part of the crime is deemed to be an offender in the act of committing the crime, and the latter part of the crime is deemed to be "after the commission of the crime is completed" means the last part of the crime, or the latter part of the crime connected with it. Thus, it can be deemed to be an offender in the act of committing the crime only where it is clearly recognized that the person who is arrested in time and at a place is an offender who actually committed the crime of the crime (see, etc.).

기록에 의하면 , 피고인이 2013 . 6 . 28 . 21 : 00경 수원시 영통구 소재 ' * * * * 횟집 ' 에서 술을 마시다가 귀가를 위하여 대리 운전을 신청한 사실 , 피고인이 대리 운전기사가 도 착하기 전인 같은 날 11 : 30경 출차를 위해 피고인의 차량을 빼달라는 요청을 받고난 후 공소사실 기재와 같이 자신의 차량을 운전하다가 그 뒤에 정차되어 있던 문□□ 소 유의 * * * 차량을 충격한 사실 , 피고인은 같은 날 23 : 54경 위 사고 처리를 위하여 보험 회사인 * * 화재 측에 연락하였고 , 그 후 출동한 보험사 직원을 통하여 위 문□□ 측과 합의한 사실 , 그 후 112 신고를 받고 출동한 경찰관인 순경 김◆◆가 2013 . 6 . 28 . 00 : 30경 피고인에게 음주 측정을 요구하였으나 피고인이 이를 거부한 사실 , 그러자 위 김◆◆는 같은 날 00 : 52경 피고인에게 피의사실의 요지 , 진술거부권 , 변호인선임권을 고지한 후 피고인을 도로교통법위반 ( 음주운전 ) 죄 현행범으로 체포한 후 피고인을 순찰 차에 태운 사실 , 그 후 위 김◆◆는 피고인에 대하여 호흡기에 의한 음주 측정을 실시 하였고 , 그 결과 피고인의 혈중알콜농도는 0 . 141 % 로 측정된 사실이 인정된다 .

According to the above facts, the arrest of the defendant in the act of committing an offense was conducted at the time of the expiration of one hour and 22 minutes from 30 on 28, 2013 when the defendant was under the influence of alcohol driving. It is difficult to see the defendant not to be a flagrant offender and the defendant as a quasi flagrant offender under Article 211(2) of the Criminal Procedure Act. According to the above legal principles, the term "after the commission of the crime, namely, "after the commission of the crime, i.e., "after the commission of the crime," the term "after the commission of the crime, i.e., the end of the crime, or the time at which the crime was committed," so it is difficult to see the defendant as a "after the commission of the crime, i.e., the latter part of the crime."

Therefore, it is illegal to arrest the defendant as an offender in the crime of violating the Road Traffic Act (breathing). Accordingly, it is illegal to arrest the defendant as an offender in the crime of violation of the Road Traffic Act, and there is no evidence to acknowledge that the defendant driven his vehicle under the influence of 141% alcohol level as stated in the facts charged, as evidence collected in violation of the warrant principles concerning arrest and detention as provided by Articles 12(1) and (3) of the Constitution and Article 211 of the Criminal Procedure Act.

4. Conclusion

Thus, the facts charged in this case constitute a case where there is no proof of criminal facts.

Innocence shall be pronounced on a defendant under the latter part of Article 325 of the Act.