207Guhap843 Revocation of revocation of license for driving motor vehicles

Kim (42-years)

Attorney Lee Chang-ju, Counsel for the defendant-appellant

For the purpose of the litigation performer literature;

May 28, 2008

July 9, 2008

1. The defendant's disposition revoking the driver's license of October 20, 2007 against the plaintiff on September 20, 2007 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff acquired the Class 2 ordinary driving license on September 13, 1995 and the Class 1 ordinary driver’s license on November 23, 2005 (license number: Jeju 95-017154-31, hereinafter “instant driver’s license”).

B. On June 16, 2007, the Plaintiff drinked alcoholic beverages between 21:30 to 22:00, while driving a motor vehicle under the influence of alcohol at around 22:00, the Plaintiff caused an accident of shocking roadside trees by getting off the previous vehicle from the side of the lower bank of the Gu-Eup at Jeju, while driving the motor vehicle under the influence of alcohol at around 22:0 and driving the motor vehicle under the influence of alcohol at around 3641.

C. At around 00:40 on June 17, 2007, the blood alcohol concentration was determined as 0.101% as a result of a request for appraisal after collecting and appraising the Plaintiff’s blood.

D. Based on the above appraisal results, the Defendant: (a) using a reverse dic acid method by the Madmark official formula, determined 0.101% of the above appraisal depositee as follows: (b) the sum of 0.021% (08% per hour, most favorable to the Plaintiff x 160%/60% of the running hours from the driving to the driving time of blood collection) of 0.122% of the above appraisal deposit amount as the blood alcohol concentration at the time of the above accident; (c) on September 20, 2007, the Defendant issued a disposition revoking the Plaintiff’s driver’s license as of October 20, 2007 (hereinafter “instant disposition”).

E. On October 2, 2007, the Plaintiff filed an administrative appeal against the instant disposition. However, on December 4, 2007, the chief of the National Police Agency rendered a ruling dismissing the appeal.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, 4, 6, 7, Eul evidence 1 to 14 (each number)

(including) each description of the

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff seeks revocation on the following grounds that the instant disposition was unlawful.

1) The blood alcohol concentration calculated by applying the Tramark official formula based on blood alcohol concentration by blood gathering measured after a considerable period of time from the time when the Plaintiff was driven by alcohol cannot be the basis for administrative disposition, such as revocation of driver's license with respect to the relevant transport electronic vehicle.

2) In the event that the Defendant reverses the blood alcohol concentration at the time of an accident by the Ba mark formula, it was erroneous that the Defendant applied the unilateral reduced value without applying the average reduced value in the application of the reduced value due to the decomposition or extinguishment of alcohol in the blood alcohol per hour.

3) The blood alcohol content by blood gathering is 0.101% and is within the range of error of the measuring instrument, which exceeds 0.1% which is the standard for revoking driver’s license, and thus, the Defendant’s disposition of this case is unreasonable.

4) The blood alcohol content by the Plaintiff’s pulmonary measurement is 0.101%, and the Defendant’s disregarding it and making the instant disposition against the Plaintiff based on the blood alcohol content by blood gathering was not consistent and is in violation of law of deviation or abuse of discretion.

5) The Plaintiff did not have a power other than a one-time drinking driving around 2000, and the instant disposition causes enormous difficulties in maintaining the livelihood of his family when the Plaintiff was unable to drive due to the instant disposition. Therefore, the instant disposition is erroneous in the misapprehension of the discretionary power or in excess of its limits due to excessive disadvantages to the Plaintiff compared to the public interest to be achieved by it.

(b) Related statutes;

/ Road Traffic Act

Article 93 (Revocation and Suspension of Driver's License)

(1) A commissioner of a district police agency shall obtain a driver's license (excluding student licenses; hereafter the same shall apply in this Article).

In any of the following cases, the standards prescribed by the Ordinance of the Ministry of Government Administration and Home Affairs shall apply:

A driver's license may be revoked or suspended within one year.

only, subparagraphs 2, 3, 6 through 8 (excluding cases where the regular aptitude test has expired), 11

When falling under any subparagraph, subparagraph 13, 15, 16 or 17, the driver's license shall be revoked.

1. When a person drives a motor vehicle, etc. while under influence of alcohol in violation of the provisions of Article 44 (1);

Enforcement Regulations of the Road Traffic Act

Article 91 (Standards, etc. for Cancellation and Suspension of Driver's License)

(1) The standards by which the driver's license may be revoked or suspended pursuant to Article 93 of the Act (a violation of traffic Acts and subordinate statutes).

(b) The standards for penalty points imposed according to the degree of violation and damage where a traffic accident occurs;

The standards for prohibiting the driving of motor vehicles, etc. pursuant to Articles 97 (1) and 97 (1) of the Act shall be included.

Attached Table 28.

[Attachment 28] Criteria for Cancellation and Suspension of Driver's License (Related to Article 91 (1))

2. Criteria for revocation:

of this chapter.

C. Determination

1) If it is not possible to examine blood or pulmonary samples of a driver immediately after driving and measure blood alcohol concentration as a result of a veterinary method, the blood alcohol concentration at the time of driving can be presumed as a result of using the so-called dicmark formula. However, in a case where an infringing administrative disposition, such as vehicle driving license, uses scientific and other empirical rules to find out the existence or absence of requisite facts, the relevant administrative agency has strict burden of proof as to individual and specific facts, which serve as the premise for the application of such rule. However, if the blood alcohol concentration at the time of driving falls under the situation where the blood alcohol concentration at the highest level, it cannot be determined whether the blood alcohol concentration at the highest level is included in the situation where it is difficult to determine whether the blood alcohol concentration at the highest level, and rather, it is possible to determine whether it falls under the situation where the blood alcohol concentration at the 10-90-minute rate at the time of driving, such as the above 10-day driver’s blood alcohol concentration at the point of time after measuring the driver’s blood concentration at the above time of 1.

2) As to the instant case, the Plaintiff’s new alcohol from around 21:30 on June 16, 2007 to around 22: as seen earlier. Although the blood alcohol content differs depending on an individual’s physical constitution, food taken in, and kinds of alcohol, etc., it is known that the Plaintiff has reached the highest value between 30 to 90 minutes after drinking, 0.0% to 0.03% per hour. Thus, it is reasonable that the Plaintiff’s most favorable facts for the Plaintiff, namely, the blood alcohol concentration after 90 minutes at drinking, 0.08% per hour, and 0.08% per alcohol concentration from around 0:16:0 on June 16, 2007 to the highest value (i.e., 0: 10% per hour if the Plaintiff’s blood alcohol concentration from around 0 to 00:10 on June 16, 2007 to 10 on July 4, 207).

However, there is no scientific indication as to which percentage of the Plaintiff’s blood alcohol content increases until reaching the above highest level, and there is no ground to conclude that the Plaintiff’s blood alcohol content in June 16, 2007, 60 minutes prior to reaching the above highest level (hereinafter “the time of driving of this case”) exceeds 0.1%, which is the criteria for the revocation of the driver’s license, and even when assumed that the Plaintiff’s blood alcohol content increases at a certain rate depending on time, the Plaintiff’s blood alcohol content at the time of driving of this case reaches approximately 0.038% (= 0.114 x 30/90) and thus falls short of the criteria for the revocation of driver’s license (if blood alcohol content reaches the highest level at around 23:20, the blood alcohol concentration at the time of driving of this case can be lower than the blood alcohol content at the time of driving of this case).

Therefore, unless there is any evidence to recognize that the Plaintiff’s blood alcohol content was not less than 0.1% at the time of driving of the instant case, the Defendant’s disposition of the instant case was unlawful without examining the remaining points.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

Freeboard (Presiding Judge)

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