The defendant shall be innocent.

1. On July 30, 2012, the summary of the facts charged in the instant case is as follows: (a) the Defendant, while drinking about about a 120-meter radius from the F cafeteria-gu, Changwon-si, Changwon-si, to the direction of drinking on July 23:42, 201; (b) there is considerable reason to recognize that the Defendant was driving under the influence of alcohol, such as driving of a amburged vehicle at a level of about 120 meters from the F cafeteria-gu, Changwon-si, Changwon-si to the direction of drinking; and (c) he was requested by the police officer to comply with the drinking measurement by inserting a total amount of about four minutes between the police officer I and about 36 minutes during the influence measuring machine, but did not comply with the police officer’s request for a drinking test without justifiable grounds.

2. Determination

A. In a case where a request for a drinking test was made in an illegal arrest, the illegal arrest for a drinking test and the request for a drinking test is made consecutively for the purpose of collecting evidence against the criminal act of driving a drinking alcohol, and it is not appropriate to individually evaluate the legitimacy of the request. Thus, the series of processes should be considered as an unlawful drinking test, and there are reasonable grounds to believe that a driver was a driving a drinking alcohol test.

Even if a police officer's duty to comply with a police officer's request for measurement of illegal drinking so it is unfair to compel the driver to comply with such request, so it cannot be punished as a violation of the Road Traffic Act concerning refusal of measurement of drinking alcohol (see, e.g., Supreme Court Decision 2004Do8404, Nov. 9, 2006). Article 199 (1) of the Criminal Procedure Act explicitly states the principle of voluntary investigation by stipulating that "it shall be limited to cases where special provisions exist in this Act and it shall be limited to the minimum necessary extent."