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The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 300,000.
The above fine shall not be paid by the defendant.
Reasons
1. Summary of grounds for appeal;
A. The judgment of the court below that found the defendant guilty of the above facts charged by adopting the results of the pulmonology even though it cannot be used as evidence for the defendant's violation of the Road Traffic Act if the police officer in charge did not conduct the measurement by means of blood collection, against the result of the pulmonology by the pulmonology, and thus, it erred in the misapprehension of facts, which affected the conclusion of the judgment.
B. The lower court’s sentence of unreasonable sentencing (fine 3,00,000) is too unreasonable.
2. Judgment on the assertion of mistake of facts
A. On October 3, 2012, the Defendant, while under the influence of alcohol of 0.104% of the blood alcohol concentration on October 3, 2012, driven a vehicle of approximately 300 meters in volume B franchise XG from the roads near the modern market distance located in Dobong-gu, Seoul Special Metropolitan City to the roads prior to 470-170, the same.
B. The lower court found the Defendant guilty of this part of the facts charged by compiling the adopted evidence.
C. According to Article 41(2) of the Road Traffic Act, a measurement conducted to determine whether a police officer is under the influence of alcohol under Article 41(2) of the same Act shall be understood as a measurement conducted by a respiratory measuring instrument, i.e., the method of objectively converting the degree of the alcohol from the respiratory and objectively. Meanwhile, according to Article 41(3) of the same Act, with respect to a driver dissatisfied with the result of a measurement as to whether a police officer is under the influence of alcohol under the provision of paragraph (2), a re-measurement may be conducted by means of blood collection, etc. with the consent of the driver. Thus, when the driver is dissatisfied with the result of the measurement conducted by the above pulmonology and demands a measurement by the means of blood collection