(영문) 창원지방법원 2018.09.13 2018노337 | 리걸엔진

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Reasons

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글꼴

크기(pt)

굵기

줄 간격

자간(%)

(영문) 창원지방법원 2018.09.13 2018노337

도로교통법위반(음주측정거부)

Text

The defendant's appeal is dismissed.

Reasons

1. The summary of the grounds of appeal (misunderstanding of the facts or misapprehension of the legal principles) the Defendant driven without drinking alcohol at the time, and the police officer, as the Defendant parked at a distance from the police officer, and demanded a measurement of drinking, on the one hand, only when the Defendant gets parked and walked at the house. As such, the Defendant was driving alcohol.

prescribed in subsection (1) of this section.

shall not be deemed to exist.

In addition, the measurement of drinking alcohol is an preventive administrative act that can demand a driver suspected of driving alcohol only when there is a need for traffic safety and prevention of danger. Since the defendant has already completed driving and there is no need for traffic safety and prevention of danger, the police officer has no authority to demand the measurement of drinking alcohol.

Therefore, it is illegal for police officers to request the defendant to take a drinking test, and the defendant did not comply with it.

Even if the crime of non-performance of alcohol measurement is not established.

2. Determination

(a) The defendant has driven a drinking alcohol;

1) The offense of refusing to comply with the measurement of alcohol under Article 148-2 (1) 2 of the Road Traffic Act is under the influence of alcohol.

A person who has a reasonable ground to be appointed is established when he/she fails to comply with the measurement by a police officer pursuant to Article 44 (2) of the same Act. In light of the provisions of Article 44 (2) of the same Act, in full view of the objective circumstances at the time of the request for a measurement of drinking, a driver has driven a motor vehicle while under the influence of alcohol.

When there is a good reason to determine a driver, and it is not clear that it is impossible to confirm the driving of a driver by means of an ex post facto measurement of drinking, police officers may request the driver concerned to take a measurement of drinking, and when the driver concerned fails to comply with it, the crime of refusing to take a measurement of drinking under Article 148-2 (1) 2 of the same Act is committed.

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