[1] The meaning of Article 38(6) of the Traffic Control Guidelines that stipulates that a drinking driver shall collect blood immediately when a drinking driver requests blood collection

[2] The standard for recognizing the State's liability for damages on the ground of omission where police officers performed duties to suppress and investigate crimes according to the judgment on duty under specific circumstances

[3] The case holding that it is difficult to readily conclude that a police officer's act of collecting blood at the driver's request without immediately conducting blood collection at the driver's request and at the driver's request, after a lapse of 1:12 minutes per hour and 12 minutes per hour, has seriously infringed on the right and interest of the driver in the course of regulating drinking driving due to the violation of the law or the loss of objective legitimacy

[1] Article 38 (6) of the Traffic Control Guidelines is a provision for the prevention of errors in the measurement results by a respiratory tester and the provision for the prevention of accurate blood alcohol concentration to a drunk operator, and the meaning of "immediately after preparing a report on detection of a drinking driver" under the above provision shall be interpreted to mean that a driver does not appeal to a police officer's measurement results by a respiratory tester and does not delay for a long time without reasonable grounds when the driver requests a measurement by blood collection method in order to prevent the difficulty in proof of the blood alcohol concentration at the time of driving due to considerable time.

[2] Prevention, suppression, and investigation of a crime constitutes a police officer’s duty, and the specific contents and methods of such duty are delegated to a police officer’s reasonable discretion based on his/her professional judgment. Thus, in a case where a police officer performs duties to suppress and investigate a crime according to the judgment that it is appropriate measures within the scope of his/her human and material capacity under specific circumstances, considering the purport and purpose of granting such authority to a police officer, the seriousness or imminent degree of damage inflicted upon a police officer’s legal interests or citizens due to failure to take other measures, the degree of the seriousness or imminent degree of damage inflicted upon a police officer’s loss, the police officer’s possibility of taking measures to avoid the result by predicting the result, if such failure to take other measures is not deemed considerably unreasonable, such failure cannot be deemed to constitute a violation of the law and subordinate statutes, which is the requirements for a State’s liability,

[3] The case holding that it is difficult to readily conclude that a police officer’s collection of blood at the driver’s request without immediately conducting blood collection, and after the elapse of one hour and 12 minutes, on the sole ground that the above act violated the law or loses objective legitimacy, thereby seriously infringing on the driver’s rights and interests that the driver may receive in the course of regulating drinking driving.

[1] Article 41 of the former Road Traffic Act (amended by Act No. 7545 of May 31, 2005) / [2] Article 2 subparagraph 1 of the State Compensation Act, Article 2 subparagraph 1 of the Act on the Performance of Duties by Police Officers / [3] Article 2 subparagraph 1 of the Act on the Performance of Duties by Police Officers, Article 41 of the former Road Traffic Act (amended by Act No. 7545 of May 31, 2005) (see current Article 44)

[2] Supreme Court Decision 97Da5482 delivered on May 8, 1998 (Gong1998Sang, 1588), Supreme Court Decision 2003Da49009 Delivered on September 23, 2004 (Gong2004Ha, 1698), Supreme Court Decision 2005Da23438 Delivered on October 25, 2007

Plaintiff

Korea

Cheongju District Court Decision 2005Na5059 decided May 2, 2006

The part of the judgment of the court below against the defendant shall be reversed, and that part of the case shall be remanded to the Cheongju District Court Panel Division.

We examine the grounds of appeal.

1. As to the Plaintiff’s assertion that “The Plaintiff collected blood immediately from a medical institution, such as the hospital most adjacent to the hospital, etc. without any justifiable reason,” in violation of Article 38(6) of the Traffic Control Guidelines, even though the Plaintiff demanded a police officer affiliated with the Defendant to collect blood immediately immediately after the breath measurement by the breathr, in violation of Article 38(6) of the said Guidelines, so that the blood concentration of the Plaintiff was measured as exceeding the control standard, thereby causing property and mental damage to the Plaintiff.” As to Article 38(6) of the Traffic Control Guidelines, the lower court determined that the Plaintiff was in violation of the said Guidelines’s duty to collect blood from a medical institution, such as the hospital most adjacent to the hospital, without any consent of the breathr immediately after preparing a report on the detection of the breathr, without any justifiable reason, and that the Plaintiff was in violation of the above guidelines to have received damages from the breathr’s blood collection duty at least before the breathr’s request or other procedure.

2. However, it is difficult to accept the lower court’s determination that the meaning of “i.e.,” under Article 38(6) of the Guidelines for Transport Control should be understood as immediately prior to any other procedure. In other words, the police officers may re-measurement drivers dissatisfied with the measurement results by means of blood collection, etc. with the consent of such drivers [Article 41(2) and (3) of the former Road Traffic Act (wholly amended by Act No. 7545 of May 31, 2005)]. If police officers did not take the measurement by the method of blood collection despite their justifiable needs, it cannot be proven that the aforementioned regulations for drinking alcohol concentration merely indicate that the driver’s primary alcohol content were not carried out by the method of blood collection without any justifiable reason (see Supreme Court Decision 2001Do7121, Mar. 15, 2002). However, if police officers fail to comply with the aforementioned guidelines for drinking control by providing the driver with legitimate methods of blood consumption measurement at the time of performing their duties, the purpose of such guidelines is to ensure fairness and efficiency of traffic regulations.

In addition, the prevention, suppression, and investigation of a crime constitutes a police officer’s duty (see Article 2 subparag. 1 of the Act on the Performance of Duties by Police Officers). Since the specific contents, methods, etc. of a police officer’s duty are delegated to a police officer’s reasonable discretion based on his/her professional judgment, where a police officer performs duties of suppression and investigation of a crime according to the judgment that it is appropriate measures within the scope of his/her human and material capacity under specific circumstances, considering the purport and purpose of granting such authority to the police officer, the degree of serious or imminent damage inflicted on the people or citizens due to the police officer’s failure to take other measures, and the possibility that the police officer can take measures to avoid the result by predicting such result, if it is deemed that the police officer’s failure to take other measures is clearly unreasonable, it does not constitute a violation of the Act and subordinate statutes, which are the requirements for the State’s liability on the ground of omission (see, e.g., Supreme Court Decisions 97Da5482, May 8, 1998; 203Da394329, Sept.

According to the facts duly established by the court below and records, the plaintiff met at a restaurant located in the Cheongju-dong (mutual omitted) of Cheongju-si on March 3, 2004, 200 to 22:2:20, while driving the above restaurant and Chungcheong (number omitted) car at 2:30 on the same day, the plaintiff's blood alcohol concentration was measured as 0.05% on the same day by 22:43 on the ground that the plaintiff's blood alcohol content was measured at 0.05% on the date when 2:0,000 on the 2nd day after 2nd day on the 3nd day on the same day on the 2nd day on the 3nd day on the 0nd day on the 0nd day on the 3nd day on the 0nd day on the 5nd day on the 5nd day on the 0nd day on the 2nd day on the 2nd day on the 2nd day on the 3rd day on the 2nd day on the 2nd day on the 3nd day on the 2nd day.

According to the above facts, a series of measures taken by a traffic-control police officer while regulating the Plaintiff’s drunk driving and any delay in blood collection therefrom may result from unfair intent or unreasonable grounds beyond reasonable discretion. It is difficult to readily conclude that the mere fact that the collection of blood prior to other procedures at the control site of this case was conducted without immediately performing it, and the collection of blood was conducted after one hour and 12 minutes from the breath from the breathr’s breathr’s breathr’s breathr’s breathr’s breathr’s breathr’s breathr’s act was in violation

In addition, the driving under the influence of alcohol is a criminal act prohibited under Article 41 of the former Road Traffic Act. As seen in the above facts, as long as the pulmonology by the respiratory tester took 0.05%, as seen in the above facts, it is clear that the Plaintiff was suspected of driving alcohol. Thus, it is for the enforcement officer to prepare an interrogation protocol against the Plaintiff as one of voluntary investigation procedures for securing evidence and prompt handling of affairs. However, there is no evidence showing that the enforcement officer exercised any force against the Plaintiff’s will in the course of preparing an interrogation protocol from the Plaintiff. In this case, there is no record that the enforcement officer did not infringe the Plaintiff’s interest incidental to the duty assigned to the police officer under the above traffic control guidelines, on the ground that the enforcement officer received the interrogation protocol from the Plaintiff before collecting blood from the Plaintiff.

Therefore, the judgment of the court below that recognized state liability for the reason of illegality in the procedural aspect of the blood collection process of this case is erroneous in the misapprehension of legal principles as to the requirements for establishing state liability, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)