The defendant shall be innocent.

1. 공소사실 피고인은 2014. 12. 19. 22:30경 혈중 알코올농도 0.054%의 술에 취한 상태로 서울 강남구 뱅뱅사거리 부근 도로에서부터 서울 서초구 양재동 101 앞 도로에 이르기까지 약 1km 구간에서 C 승용차를 운전하였다.

2. Determination

A. According to the evidence submitted by the prosecution, it is acknowledged that the Defendant collected blood from the Seoul Gangseo-gu Emergency Hospital located in the Seocho-gu Seoul Metropolitan Government distribution Dong on December 19, 2014 to 21:49 on the same day and returned home to Korea using his/her own car after drinking alcohol at around 22:27 of the same day. The Defendant measured the blood alcohol concentration at around 22:30,053% of the same day. The Defendant demanded to measure the blood alcohol concentration at around 23:05 on the same day, and the blood concentration at around 23:05 on the same day measured the blood concentration at around 0.54%.

B. However, in full view of the following circumstances, it is difficult to view that the evidence presented by the prosecution alone was proven to the extent that the blood alcohol level was 0.05% or more but less than 0.1% at the time of the termination of the driving of the Defendant, beyond a reasonable doubt.

(1) In the case of a measurement by a respiratory tester, there is a problem of accuracy and reliability of the measurement result due to the condition of the measuring instrument, measuring method, degree of cooperation between the other party, etc. Thus, barring special circumstances that make it difficult to believe the result of a measurement by blood gathering, such as artificial manipulation in the process of blood collection or examination, or interference by the related party, it is in accord with the empirical rule to regard the blood testing as a blood alcohol measuring level close to the blood alcohol level at the time of the measurement than the blood alcohol level by the respiratory tester, barring special circumstances.

Supreme Court Decision 2003Do6905 Delivered on February 13, 2004