Defendant

Defendant

Major Madden fever

Captain Private Military Advocates Day (Korean Ship)

Mads

General Military Court of National Defense Supreme Court Decision 2008Da13 Decided September 30, 2008

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 500,000,000.

When the defendant does not pay the above fine, the defendant shall be confined in the old house for the period calculated by converting the amount of 50,000 (O00) into one day.

1. Summary of grounds for appeal;

The gist of the grounds for appeal by the military prosecutor is that it is not sufficient for the court below to hold the defendant not guilty of the charges on the ground that the defendant did not have an opportunity to be able to suffer from the 20 minutes after the passage of 20 minutes in the traffic control guidelines, since the remaining alcohol alcohol in the mouth from the final drinking time requires 20 minutes in the mouth, but the traffic control guidelines do not give the opportunity to suffer from the 20 minutes after the drinking time and did not have an opportunity to suffer from the 3 hours after the drinking time.

2. Summary of the facts charged in this case and the judgment of the court below

The summary of the facts charged in the instant case is that “The Defendant driven (vehicle number omitted) options car under the influence of alcohol level of about 0.050 percent from the section of approximately 10 kilometers of alcohol level to the Seocho-dong, Seocho-gu, Seoul, 1324, the Seocho-gu, Seocho-gu, Seoul, at the ○○ Education Team located in Geumnam-si, Sungnam-si, about 22:16 on April 12, 2006.”

The court below found that the facts charged of this case cannot be deemed to have been proven to the extent that it could avoid reasonable doubt on the ground that it is difficult to prove that the charge of this case is likely to be proved to the extent that, at the time of the breath measurement by the rebreath measuring instrument, the alcohol is remaining because the defendant was engaged in the breath test without suffering from water at the time of the breath measurement.

3. Judgment of the court of the trial

A. Supreme Court position

The summary of the Supreme Court's decision alleged as the ground of innocence by the defendant and his defense counsel is that "the measurement of blood alcohol concentration by a smoking measuring instrument is conducted by absorbing in the head of the breath and measuring the pulmonary air discharged by the breath because of the breath in the blood. Thus, a considerable time has not elapsed since the final drinking time, or due to the use of tlim, earth, froto, stove, oral air, and oral conditioning, etc., remaining in the draft, if the breath in the mouth with the pulmonary air discharged from the waste, the breath in the upper part, etc. are measured together with the breath in the body, it can be seen that the breath concentration by the breath in the breath measuring instrument cannot be readily concluded as the same as the result of the measurement by the breath in the body without being drafted as water, or it can not be ruled out that the breath in the breath measuring instrument may have a higher level than the blood alcohol concentration."

The purport of the above Supreme Court's decision is to clarify the purport of the judgment that, in a case where it can be recognized that it is evident that there has been a considerable time from the final drinking time or there is no fact in the use of crypary agents, etc., such as tweto, tweto, dental agents, etc., even if the draft is not put in place, it would be possible to trust the result of pulmonary measuring instruments even if it is not put in place in place in place, and to interpret it as above is also consistent with the legislative policy of the Road Traffic Act which adopted the method of measurement by the pulmonary measuring instrument through the method of measuring crypology."

B. As to the determination of mistake of facts by the court below

1) Recognized facts

In light of the overall records of this case and the statement of the defendant at the trial, the distance of the defendant's driving in drinking condition is about 13-30 minutes in the shortest distance, the optimal distance is about 13-16 kilometers in the Internet guidance search site, and driving time is about 25-10 minutes in the case of driving the above road due to compliance with traffic regulations in a smooth state of traffic condition. ② According to the report on the state of the driver's statement, according to the fact that the defendant explicitly refused to take a drinking test by collecting blood and consented to the result of the respiratory measuring instrument, ③ according to the opinion written by the non-indicted 1, the defendant, the non-indicted 1, the defendant, who was a doctor, was allowed to take a drinking test in front of the Seocho-dong 1324, Seocho-gu, Seoul, Seocho-gu, Seocho-gu, 1324, and the defendant was allowed to take a corrective measure at the time of 20-1, 30-2,000 minutes in drinking condition.

2) Determination

The correction of X-ra photographs attached to the written opinion of the Nonindicted Party prepared by the doctor, and the correction for the franchising metal for which the Defendant was using, is not a fixed structure for rupture correction, but a franchising and cream instead of franchising. This cannot be deemed to have a big difference in the general franchis structure, and it is difficult to view that the remaining possibility of alcohol concentration in the mouth significantly increased.

In addition, according to the author's "Research on the problems and countermeasures of the remaining alcohol in the mouth of the Mari-Man" of Kim Nam professor, alcohol is changed to the blood concentration after the lapse of 15 minutes after drinking alcohol, and it reaches the highest level upon the lapse of 30-75 minutes after drinking, and both 2-3 hours after drinking, and the alcohol remains in blood. Thus, it is appropriate to view that the defendant does not keep the remaining alcohol as well as 4 hours after drinking alcohol from the final drinking time of the Mari-Man. This point is that at the time that the defendant had made a fluort, and that at the time, it may not change because the alcohol remains in blood.

Meanwhile, in light of the fact that the Defendant had a blood alcohol level of 0.050% at the time of detection of drunk driving, but the Defendant had already been driving over about 30 minutes prior to that time, it is deemed that the results of the respiratory measuring instrument that the Defendant driven in a drinking condition are sufficiently reliable.

On the other hand, it is difficult to recognize the credibility of the Defendant’s statement dissatisfied with the result of measurement at the time of the detection of a drunk driving, in light of the fact that the Defendant did not dispute the result of measurement in spite of the fact that it was possible to correct the result of measurement by re-measurement or re-measurement by blood collection after the Re-measurement at the time of the detection of a drunk driving.

3) Sub-determination

As seen above, the judgment of the court below which acquitted the defendant on the ground that there was a possibility that water would have been higher than the actual blood alcohol concentration due to the remaining alcohol content remaining in the defendant's drafting on the ground that water was not put on the ground that the water was not put on the ground that the water was not put on the ground that it was not at all at the time of measuring the alcohol level for 4 hours after the final drinking time at the time of measuring the alcohol level for the defendant, and that the prosecutor's appeal pointing out the mistake of facts and the violation of the rules of evidence has merit.

4. Conclusion

Therefore, the lower judgment is reversed pursuant to Article 431 and Article 414 subparag. 11 of the Military Court Act, and the military court directly rendered a judgment following pleadings pursuant to Article 435 of the Military Court Act, since it is deemed sufficient for the military court to render a self-reader based on the records.

On April 12, 2006, at around 22:16, the Defendant driven a (vehicle number omitted) options car at the ○○ Education Group located in Geumnam-si, Sungnam-si and about about 10 kilometers from the 1324 m. section of Seocho-gu, Seoul, Seocho-gu, to the west-si, Seocho-gu, Seoul, with a alcohol level of about 0.050 percent (vehicle number omitted).

1. The statement that conforms to the facts stated in the judgment at the trial court of the defendant;

1. Statement corresponding to the report on detection of a host driver prepared by the assistant judicial police officer;

1. Statement corresponding to the report on the circumstances of a senior driver prepared by the assistant judicial police officer;

1. It is proved that the notice of completion of correction by the chief executive officer of the Road Traffic Safety Authority can be recognized by taking account of the corresponding contents.

1. Article applicable to criminal facts;

Article 107-2 subparagraph 1 of the Road Traffic Act and Article 41 (1) of the Road Traffic Act (the point of driving under the influence of alcohol and the choice of a fine)

2. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

It is so decided as per Disposition for the above reasons.

Man-young Kim Young-young (Presiding Judge) of the Military Court