[1] The case where the admissibility of evidence collected in violation of due process and the secondary evidence obtained based on it can be exceptionally acknowledged

[2] In a situation where it cannot be deemed that the blood sampling result by means of blood sampling conducted at the suspect’s request is cut off at time and at a place after the pulmonary testing method was conducted during the illegal forced conduct (negative in principle), and whether the same applies to the case where the defendant or his/her defense counsel consented to the measurement as evidence (affirmative)

[1] Comprehensively taking account of Article 12(1) and (5) of the Constitution of the Republic of Korea, Articles 200-5, 213-2, and 308-2 of the Criminal Procedure Act, where evidence is collected based on an illegal act that does not comply with due process, the admissibility of evidence should be denied for the secondary evidence obtained based on the illegal act as well as the pertinent evidence. However, the aforementioned principle of exclusion of illegally collected evidence aims to guarantee fundamental human rights of the people by suppressing the illegal act in the investigation process. Thus, even if evidence collected in a situation where it is deemed that the effect of an act that violates due process is prevented or extinguished, it does not constitute an infringement on the substantial contents of due process, and there is no reason to deny admissibility of evidence. Accordingly, in full view of the content and circumstances of the act of violation of due process committed during the evidence collection process and related circumstances, if it is acknowledged that causation is cut off by intervention in other circumstances to deem that the illegal element was removed or excluded in the middle of the original due process and evidence collection act, it can be admitted as evidence.

[2] In a situation where it cannot be deemed that a blood collection is conducted by means of a pulmonary measuring method under an illegal forced conduct, and it cannot be deemed that the suspect’s core condition is completely exceeded from the state of forced conduct, and even if blood collection was conducted by the suspect, it cannot be deemed that the causal relationship between illegal arrest and evidence collection is severed unless there are other circumstances to deem that the influence of the illegal arrest status is completely excluded and the suspect’s freedom of decision-making is guaranteed, even though blood collection was conducted by the suspect’s own request to take a measurement by means of blood collection method for the purpose of impeachment of the pulmonary test result, unless there are any other circumstances that make it difficult for the suspect to fully exclude the impact of the illegal arrest condition and ensure the suspect’s freedom of decision-making. Accordingly, the result of such blood collection measurement should also be deemed as not being used as evidence for conviction. This is for the purpose of effectively suppressing the investigative agency to collect evidence using the illegal arrest condition. Thus, it is not

[1] Article 12(1) and (5) of the Constitution of the Republic of Korea; Articles 200-5, 213-2, and 308-2 of the Criminal Procedure Act / [2] Article 12(5) of the Constitution of the Republic of Korea; Articles 200-5, 308-2, and 318 of the Criminal Procedure Act

[2] Supreme Court en banc Decision 2007Do3061 Decided November 15, 2007 (Gong2007Ha, 1974) Supreme Court Decision 2009Do526 Decided April 23, 2009 (Gong2009Sang, 804) Supreme Court Decision 2012Do1162 Decided December 13, 2012 (Gong2013Sang, 205)

Defendant

Defendant

Jeonju District Court Decision 2009No1001 Decided January 22, 2010

The judgment of the court below is reversed, and the case is remanded to Jeonju District Court Panel Division.

The grounds of appeal are examined.

1. The Constitution provides that “no person shall be arrested, detained, seized, searched, or examined except as otherwise provided by Act (Article 12(1)); and that “no person shall be arrested or detained without being informed of the grounds for arrest or detention and of the right to assistance of counsel” (Article 12(5)); and declares the principle of due process regarding arrest or detention. In the meantime, the Criminal Procedure Act provides that “a prosecutor or a judicial police officer shall give him/her an opportunity to defend himself/herself by stating the gist of the offense, the grounds for arrest, and the appointment of a defense counsel when he/she arrests a suspect, and shall give him/her an opportunity to defend him/her (Article 200-5).” Furthermore, the provisions apply mutatis mutandis to cases where a prosecutor or a judicial police officer arrests a flagrant offender or takes delivery of a flagrant offender (Article 213-2). Furthermore, Article 308-2 of the Criminal Procedure Act supports the norm of each of the above provisions in order to maintain the normative force.”

In full view of these provisions, in a case where evidence is collected based on an illegal act that does not comply with due process, the evidence in question as well as secondary evidence obtained based on it should be denied. However, the principle of exclusion of illegally obtained evidence is to guarantee fundamental human rights of the people by suppressing an illegal act in the investigation process. As such, even if admissibility of evidence is acknowledged, it does not constitute an infringement on the substantial contents of due process. Therefore, there is no reason to deny admissibility of evidence. Accordingly, in full view of the content and circumstances of the violation of due process in the process of collecting evidence and its related circumstances, in exceptional cases where causation is severed by involvement in other circumstances that can be deemed to have been removed or excluded from the illegality element of the act in the middle of the original due process and evidence collection process, it can be admitted as evidence of conviction.

Meanwhile, compulsory arrest and notification of the right to appoint a defense counsel constitutes a typical illegal arrest, and a request for a drinking measurement made in an unlawful arrest during a series of processes for the purpose of collecting evidence against a criminal act committed by a driving at home. As such, the result of such measurement constitutes “ evidence collected without lawful procedures” as provided in Article 308-2 of the Criminal Procedure Act and cannot be admitted as evidence (see, e.g., Supreme Court en banc Decision 2007Do3061, Nov. 15, 2007). In addition, it cannot be deemed that a drinking measurement conducted by a method of respiratory while illegal compulsory arrest and then the suspect’s core condition was cut off completely from the state of compulsory arrest, and it cannot be deemed that the suspect’s act was conducted with a view to impeachment, and thus, it cannot be deemed that the investigation agency’s consent to use the method of collecting blood on his/her own to use it as evidence is insufficient to deem that the defendant’s or his/her act of collecting blood was unlawful and that it did not interfere with the freedom of evidence collection.

2. The reasoning of the judgment below and the evidence duly admitted by the court below revealed that the defendant continued to stop the patrol, arguing that it was against the driver of the damaged vehicle and the driver of the affected vehicle and the fesscence, and the police officer called the scene by the report on the side of the damaged vehicle, on the ground that the defendant met the rear mirror of the damaged vehicle while driving a vehicle at around 22:00 on December 12, 2008, and the police officer was dispatched to the scene, and that the police officer demanded to accompany the vehicle to take a breath level for the purpose of measuring the breath degree of alcohol by suspicion of the defendant's drinking driving, the defendant refused the patrol, and four police officers forced the defendant to take the breath level of the defendant's arms and forced to take the breath level of the police officer, and the defendant did not comply with the procedure of notifying the defendant of the matters stipulated in Article 200-5 of the Criminal Procedure Act at the time of the breath level of the breath level of the police officer's.

Based on the above factual basis, the lower court found the Defendant guilty on the ground that: (a) even if the Defendant’s act of the police officers moving into and departing from the instant district constitutes an arrest by force, not a voluntary act; and (b) the procedure prescribed in Article 200-5 of the Criminal Procedure Act was not implemented at the time of arrest, the blood alcohol concentration appraisal and the report on detection of drinking drivers based on the blood collection conducted based on the Defendant’s voluntary intent constituted admissible evidence.

However, in light of the legal principles as seen earlier, the police officer’s act of forcing the Defendant to take a drinking test at the district constitutes an illegal arrest, and thus, the request for a drinking test at the district constitutes an illegal investigation. As such, the admissibility of evidence can not be acknowledged as evidence of the result of a drinking test conducted without following lawful procedures. Furthermore, in light of all the circumstances, such as the Defendant’s filing of an objection to the result of a drinking test conducted by a respiratory method, which is evidence collected, and the process of collecting blood, and the process of raising an objection to the result of a drinking test conducted by a respiratory method, the evidence collected by the Defendant without following legitimate procedures, and the blood alcohol concentration assessment report and the exposure report based on the evidence collected on the extension of an illegal arrest, and thus, constitutes evidence collected without following the “legal procedure” as provided in Article 308-2 of the Criminal Procedure Act. In addition, it is difficult to view that the Defendant’s act of collecting blood does not have any effect on the part of the police officer’s self-determination of evidence to be excluded from the scope of evidence collection.

Nevertheless, the court below found the blood alcohol concentration appraisal report and the blood alcohol driver detection report containing the result of the blood sampling method as admissible, and found the defendant guilty of the facts charged in this case. The court below erred in the misapprehension of legal principles as to the principle of exclusion of illegally collected evidence and the scope of exception, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)