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All appeals filed by prosecutors and defendants are dismissed.
Reasons
1. Summary of grounds for appeal;
A. Regarding the part of the violation of the Road Traffic Act (driving) which the lower court acquitted the Defendant, the lower court denied its credibility and acquitted the Defendant of this part of the charges, in violation of the rules of evidence and erroneous determination of facts, even though the Defendant led to a confession of the driving of alcohol by the Defendant, and was prosecuted in the investigative agency by using the blood alcohol concentration index which is calculated by applying the most favorable to the Defendant based on the Defendant’s statement.
B. The punishment sentenced by the lower court (eight months of imprisonment) is too unreasonable.
2. Determination
A. In order to find out the existence of the facts constituting the elements of a crime in relation to the prosecutor’s assertion of mistake, a strict proof is required for individual and specific facts that constitute the premise for the application of the rule of law, such as scientific and other facts. In the case of the Badmark formula, the amount of alcohol taken in as data for the application thereof, drinking time, body weight, etc. Therefore, strict proof is required for such premise facts (see, e.g., Supreme Court Decision 2008Do5531, Aug. 21, 2008). The Defendant stated at an investigative agency and the court of the lower court from around April 21, 2013 to April 11, 2013, that the small 2 Hobbes, one week, from around 21:00 to April 1:00, 2013, drive a vehicle as stated in the facts charged.
However, in order to calculate the blood alcohol concentration by the Medmark formula, it is necessary to provide detailed evidence about drinking volume, drinking time, and body body.
① With respect to the body of the Defendant, in an investigative agency, the body weight of the Defendant was measured with 62km, but this was measured at the time when about four months elapsed from the time of committing the instant crime, the body weight of adults can sufficiently change depending on their body condition, and the Defendant’s body weight and crime at the time of the instant investigation.