도로교통법위반(음주운전)등
The judgment of the court below is reversed.
Defendant shall be punished by a fine of 6,500,000 won.
The above fine shall not be paid by the defendant.
1. Summary of grounds for appeal;
A. In light of the fact that the Defendant’s misunderstanding of the fact was at the time of drinking and the time of measuring the alcohol level from the time of measuring the blood alcohol level at the time of driving of the instant case merely is 96 minutes of time, the Defendant’s blood alcohol level at the time of driving of the instant case is likely to have risen, and there is a possibility of an error in the measuring machine of drinking, it cannot be readily concluded that the blood alcohol level at the time of driving of the Defendant constituted a crime of violation of road traffic law (driving of alcohol).
B. The sentence of the lower court’s improper sentencing (eight months of imprisonment) is too unreasonable.
2. Determination
A. In a situation where it is impossible to determine whether the alcohol level at the time of driving under the relevant legal doctrine is the point of increase in blood alcohol level, or when it is difficult to determine whether the blood level at the time of driving, the alcohol level among the blood measured at the time when the driving is completed, has exceeded the punishment standard value.
Even if the blood alcohol concentration at the actual driving time exceeds the standard level of punishment.
It shall not be readily concluded.
Although there are differences for each individual, the alcohol concentration in blood between 30 minutes and 90 minutes after drinking has reached the highest level, and thereafter, it is generally known that about 0.08% and 0.03% (average 0.015%) per hour are reduced. If the driving is in the rise period, the alcohol concentration in blood at the time of driving may be lower than the actual measured blood concentration.
However, if there is an interval between the time of drinking driving and the time of measuring the alcohol concentration in the blood, and at that time, the alcohol concentration in the blood seems to increase.
Even if such circumstance alone makes it impossible to prove that the alcohol concentration at the time of actual operation exceeds the standard value of punishment.
shall not be deemed to exist.
In such a case, the punishment level was higher than the standard level at the time of driving.
Whether it can be seen or not is the interval between driving and measuring.