[1] Whether the evidence collected in violation of the procedures prescribed by the Constitution and the Criminal Procedure Act and the secondary evidence obtained based on such evidence is admissible (negative in principle) and the standard of its determination

[2] Whether the evidence of the appraisal report using blood gathered without the defendant's consent or warrant is admissible (negative)

[3] The case affirming the judgment below which acquitted the defendant of violation of the former Road Traffic Act against the defendant by denying the admissibility of evidence such as a certificate of appraisal of blood alcohol concentration using the above blood, in case where the police officer dispatched to an emergency room of a hospital after having lost awareness of traffic accidents while driving, caused the police officer to collect blood without a warrant

[1] Article 308-2 of the Criminal Procedure Act declares that “Any evidence collected without due process shall not be admitted as evidence.” In order to guarantee fundamental human rights, the normative power of the Criminal Procedure Act, which declares due process relating to search, seizure, verification and appraisal disposition and declares the basis of warrant requirement in order to realize harmoniously the establishment of substantial truth and the ideology of the protection of rights of individuals, must be maintained firmly. As such, evidence collected without following the procedure prescribed by the Constitution and the Criminal Procedure Act, as well as secondary evidence acquired based on such procedure, shall not be admitted as evidence for conviction in principle, since it does not follow the legitimate procedure established to guarantee fundamental human rights. However, in the final determination of whether to recognize the admissibility of seized materials illegally collected, the circumstance and degree of violations committed in the process of evidence collection, namely, the purpose and content of the procedural provision, possibility of avoidance, infringement of rights or legal interests to be protected, relation between the defendant and the collection of evidence, and the degree of causal relationship between the evidence collection and the evidence collection procedure and the overall criminal justice procedure, should be deemed as having been acknowledged as evidence in violation of due process.

[2] If the investigative agency, in violation of the provisions of Articles 215(2), 216(3), 221, 221-4, and 173(1) of the Criminal Procedure Act, without obtaining a warrant or a written permission for the appraisal disposition from the court, collected blood from the suspect's body without the consent of the suspect without obtaining a warrant or a written permission for the appraisal disposition, and conducted an appraisal of the alcohol concentration in the blood of the suspect who forced the collection of blood without obtaining a warrant immediately after the subsequent issuance of the warrant, such appraisal report, etc. is a evidence collected or based on it in violation of the warrant requirement principle under the Criminal Procedure Act, and its procedural violation constitutes a substantial violation of due process. Such evidence cannot be used as evidence of guilt even if there is consent of the defendant or defense counsel.

[3] The case affirming the judgment of the court below which acquitted the defendant of a violation of the former Road Traffic Act (amended by Act No. 9580 of Apr. 1, 2009) on the ground that in case where the police officer called out to collect blood from a hospital emergency room without obtaining a warrant of seizure, search, or verification, when the defendant was escorted to a hospital emergency room while driving a motor vehicle, it is justifiable to deny the admissibility of evidence of the National Scientific Investigation Research Institute's appraisal of blood alcohol concentration using the defendant's blood collected without following lawful procedures, and that the warrant requirement is requested to collect blood from a drinking driver, there is a risk of having no value of evidence, or there is a risk of having no value of evidence, or that the person sent to the hospital after the drinking driver was exposed to the hospital because the investigative agency requested a medical doctor to collect blood for the purpose of investigation, even if there are circumstances where excluding the admissibility of evidence does not violate the purpose of realizing justice of the criminal justice (amended by Act No. 9580 of Apr. 1, 2009).

[1] Article 12 (1) and (3) of the Constitution of the Republic of Korea; Articles 215, 307, and 308-2 of the Criminal Procedure Act / [2] Articles 173 (1), 215 (2), 216 (3), 221, 221-4, 308-2, and 318 of the Criminal Procedure Act / [3] Article 44 (1) of the former Road Traffic Act (Amended by Act No. 10382, Jul. 23, 2010); Article 150 subparagraph 1 of the former Road Traffic Act (Amended by Act No. 9580, Apr. 1, 2009); Articles 307 and 308-2 of the Criminal Procedure Act

[1] Supreme Court en banc Decision 2007Do3061 Decided November 15, 2007 (Gong2007Ha, 1974) Supreme Court Decision 2008Do11437 Decided March 12, 2009 (Gong2009Sang, 900) Supreme Court Decision 2009Do11401 Decided December 24, 2009 (Gong2010Sang, 298) Supreme Court Decision 2009Do14376 Decided July 22, 2010

Defendant

Prosecutor

Gwangju District Court Decision 2008No2702 Decided February 18, 2009

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 308-2 of the Criminal Procedure Act provides that “Any evidence collected without due process shall not be admitted as evidence.” In order to guarantee fundamental human rights, the normative power of the Criminal Procedure Act, which declares due process relating to search, seizure, verification, and appraisal and declares the basis of warrant requirement, should be maintained firmly so as to realize harmoniously the establishment of substantial truth and the ideology of the protection of rights of individuals. As such, evidence collected without following the procedure prescribed by the Constitution and the Criminal Procedure Act, as well as secondary evidence acquired based on such procedure, shall not be admitted as evidence for conviction in principle, since it does not comply with the legitimate procedure established to guarantee fundamental human rights. However, in determining admissibility of seized articles illegally collected, all circumstances related to the violation of the procedure conducted by an investigative agency, namely, the purport and degree of the violation, the degree of avoidance, the nature and degree of infringement of rights and interests to be protected, the relevance between the defendant and the collection of evidence, and the extent of causation between the criminal procedure and the evidence collected, should also be considered as evidence to constitute an exceptional evidence of the Criminal Procedure Act.

However, when necessary for criminal investigation, a judicial police officer may seize, search, or inspect evidence with a warrant issued by a judge of the district court upon request by a prosecutor (Article 215(2) of the Criminal Procedure Act). In a case where it is impossible to obtain a warrant by a judge because of urgency at the place of crime during or immediately after the crime, search, or inspection may be conducted after the request by a prosecutor. However, in such a case, a warrant shall be obtained after the fact without delay (Article 216(3) of the Criminal Procedure Act). An appraiser who is commissioned to give an appraisal by a prosecutor or a judicial police officer may, upon request by a prosecutor, obtain a written permission for appraisal from a judge and make dispositions prescribed in Article 173(1) of the Criminal Procedure Act such as physical examination (Articles 221, 221-4, and 173(1) of the Criminal Procedure Act). Thus, even if an investigative agency in violation of the Criminal Procedure Act without obtaining a warrant or written permission for appraisal from a court without consent of the suspect and without consent of the defense counsel, it constitutes due process of evidence.

2. Based on its adopted evidence, the court below acknowledged the following facts: (a) on June 25, 2008, the Defendant driven a truck at a place as indicated in the judgment at around 21:00, and caused an accident where the vehicle was placed on the right side of the road, and the vehicle was put into an issue; (b) the Defendant suffered injury for about seven weeks in need of medical treatment; and (c) on the same day, the police officer called into an emergency room upon receiving the above accident report at around 21:14, after obtaining the warrant of seizure, search, or verification from the Defendant’s Dong book without obtaining the warrant of seizure, search, or verification from the court, so that the doctor would lose the consciousness of collecting blood from the Defendant who was in an emergency room by using the without alcohol species; and (d) determined that the instant blood collection was not issued a warrant after being issued by the judge, and thus, the Defendant was not guilty of this part of the charges on the ground that there was no evidence to acknowledge otherwise in this part of the charges and no evidence to prove otherwise.

In light of the aforementioned legal principles, it is justifiable for the court below to deny the admissibility of evidence of an appraisal report on blood alcohol concentration and an appraisal report on blood alcohol level by the defendant's blood collected without due process, and even if the warrant requirement is requested with respect to blood collection from a drinking driver, there is a risk of no value of evidence, or there is a circumstance of collecting blood from a person who was transmitted to a hospital due to traffic accident while drunk driving, which caused an accident during the investigation and was in an unidentified state, and the investigative agency requested the person who was transmitted to the hospital for the purpose of investigation, the court below cannot be deemed as an exceptional case where it is deemed that the exclusion of admissibility of evidence

Of the facts charged in this case, the judgment of the court below which acquitted the defendant on the ground that there is no proof of crime is just, and there is no violation of the legal principles as to admissibility of evidence or "legal procedure" as provided in Article 308-2 of the Criminal Procedure Act or violation of the rules of evidence.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)