A. Since a police officer who called to the scene of this case by misapprehending the legal principles forced a defendant to a police station without undergoing lawful arrest procedures, the result of measurement of drinking conducted under such illegal forced conduct constitutes illegally collected evidence and cannot be deemed as evidence of guilt, so the defendant cannot be punished as a crime of drinking alcohol driving.

B. On the main point of the person on the day of the instant case, the Defendant: (a) asked a substitute driver to drive the said vehicle after drinking alcohol; and (b) brought about a dispute with the substitute driver while returning to his house; (c) the substitute driver was placed on the first line of the said vehicle; and (d) he was waiting for contact because he did not receive any kind of telephone for driving; and (c) the Defendant did not drive the said vehicle after drinking alcohol.

C. The lower court’s sentence of unreasonable sentencing (fine 4 million won) is too unreasonable.

Judgment

A. In a case where it is clearly proved by objective circumstances that an investigator of the determination of the misapprehension of the legal principle was accompanied by a suspect’s voluntary will of the suspect solely, such as where the suspect, who was aware that the investigator could refuse the accompanying of the suspect while accompanying the suspect to the investigative agency, etc. during the investigation process, was aware that the suspect could freely leave or could leave the accompanying place at any time, etc., the legality of accompanying is recognized.

In addition, the determination of the voluntariness in the aforementioned voluntary behavior shall be based on objective circumstances, comprehensively taking into account various circumstances, such as the time and place of accompanying, the method of accompanying, the existence of intent to refuse accompanying, the method of investigation after accompanying, and the existence of intention to leave.

(see, e.g., Supreme Court Decision 2014Do10518, Dec. 11, 2014). The lower court and the lower court have duly adopted and investigated the case.