The defendant shall be innocent.

1. On March 19, 2015, the Defendant: (a) driven a C low-priced car; (b) driven the said car by approximately 100 meters from the front of the “brodwa” restaurant located in 354-28, Dongwon-ro, 354-28, in the state of being drunk with alcohol content of 0.103% in blood around March 19, 2015; and (c) driving the said car from the front of the “brodwa” restaurant located in 1066-3, Dongwon-ro, 106-3.

2. Determination

A. Article 199(1) of the Criminal Procedure Act specifies the principle of voluntary investigation.

The act of accompanying a suspect to an investigative agency, etc. in the form of obtaining consent from an investigator in the course of an investigation does not have any means to restrain the physical freedom of the suspect even though it is substantially similar to the arrest, and thus, it is not possible to guarantee voluntaryness as well as institutionally, and it is highly likely that the Constitution and Criminal Litigation Act do not provide various rights guarantee devices granted to the suspect under arrest and detention on the ground that it is before the regular arrest and detention stage.

Therefore, it is reasonable to view that the legality of accompanying is recognized only in cases where an investigator knew that he/she could refuse accompanying the suspect prior to accompanying, or where it is clearly proven by objective circumstances that the suspect was accompanied to the investigative agency, etc. by the voluntary will of the suspect, such as where the suspect was free to leave or to leave the accompanying place at any time, etc. (see, e.g., Supreme Court Decisions 2009Do6717, Jun. 30, 201; 2012Do8890, Sept. 13, 2012). The purpose of the investigation agency’s accompanying to the investigation agency without the recognition of legality of voluntary accompanying constitutes illegal arrest, and the demand for alcohol measurement conducted in such unlawful arrest condition is to collect evidence for the crime of drinking driving.