The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

A. Comprehensively taking account of the evidence submitted by the prosecutor, the fact that the Defendant’s final drinking time was around 02:00 on June 22, 2013 can be recognized.

The judgment of the court below which acquitted the Defendant of the violation of the Road Traffic Act (driving) among the facts charged in the instant case on the premise that the Defendant’s final drinking time is around 00:00 on June 22, 2013, is erroneous in the misapprehension of the facts.

B. The sentence imposed by the lower court on the grounds that the sentence of unfair sentencing (two months of imprisonment, two years of suspended sentence, one hundred and twenty hours of community service, and forty hours of attending the compliance driving lecture) is too uneasible and unfair.

2. Determination

A. In the case of a misunderstanding of facts, the blood alcohol level at the time of operation can be presumed as a result of calculating the blood alcohol level by a veterinary method, using the so-called dmark formula, unless it is possible to examine the blood or pulmonary samples of the driver immediately after the driving, and measure the blood alcohol level at the time of operation. However, in the case of using the empirical rule such as scientific public awareness to find out the existence of the constituent elements of the crime, individual and specific facts constituting the premise for the application of the rule of law should be proved. Meanwhile, in the case of presumption of the blood alcohol density at the time of operation by adding the blood alcohol concentration at a certain time after a certain time from the specific driving point of time according to the dmark formula, using the reverse dmark formula, there is no reasonable conviction in the criminal trial as to the presumption of the blood alcohol concentration at the time of operation by adding the blood alcohol level at the time of operation after the decrease due to the dmark formula reduction of the blood alcohol level at the time of operation.